Herrlich v. McDonald

McFarland, J. — This case is before the court upon a motion of appellant to recall the remittitur. The cause was heard in Department One, and the judgment of the court below was affirmed, with fifteen per cent damages, the opinion of the court in Department having been filed September 7, 1889 (80 Cal. 460). At the end of thirty days the remittitur issued as usual, no petition for hearing in Bank having been filed. The motion to recall the remittitur is based on an affidavit of appellant’s counsel, to the effect that on September 16,1889, he made a motion in Department One to modify the judgment by striking off the said fifteen per cent damages, and that said motion had never been decided. The records of the court do not show that any such motion was made. As a matter of fact, however, counsel did make such a motion or request orally, but [506] it is also true that the court (Department One) did consider the motion, and decided against granting it, although that decision does not appear on the records. So the record does not show anything about the matter. But assuming the facts to be as stated in the affidavit, as there was no order made that the cause he heard hy the court in Bank, the judgment became final, under the constitution, in thirty days, and the remittitur, in usual course, went down to the lower court. The pendency of appellant’s said motion—assuming that it was pending — could not prevent that result. And when a remittitur issues in regular course, the rule is, that the jurisdiction of this court ends. Whether or not the court would have power to recall a remittitur issued through its own inadvertence, it is not necessary here to determine; there was no such inadvertence in this case. As there was no petition for hearing in Bank under rule 30, there was nothing for this court to act upon within the thirty days; and at the expiration of that time the remittitur issued regularly, and not inadvertently. (See Adams v. Dohrmann, 63 Cal. 420.) Motion to recall remittitur denied. Sharpstein, J., Thornton, J., and Beatty, C. J., concurred.