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Stetson v. Sheehan

186 Cal. 334 Court Cal. Decision date 1921-06-23 Docket S. F. No. 9534 English

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p. 334
[S. F. No. 9534.
In Bank.
June 23, 1921.]
HARRY N. STETSON, Respondent, v. M. SHEEHAN, etc., et al., Appellants,

Headnote

[1] Appeal — Hearing After Decision by District Court of Appeal—Modification of Judgment by District Court of Appeal— Time for Determining Application.—A judgment of the district court of appeal when modified by such court does not become final therein until thirty days after such modification, and where a petition for the hearing of the appeal in the supreme court is filed before the expiration of such period, the jurisdiction to pass upon the petition continues for thirty days after the expiration of the date of such modification.
APPLICATION for hearing of appeal in Supreme Court after decision by the District Court of Appeal.
The facts are stated in the opinion of the court.
J. J. Lermen and Ross & Ross for Appellants.
Thomas C. Jordan, Wright & Wright & Stetson and A. Kincaid for Respondent.

A petition for hearing in this court after decision by the district court of appeal of the first appellate district, division one, was filed herein on June 4, 1921, on the theory that the judgment of the district court of appeal was given on April 26, 1921. [1] The judgment of April 26, 1921, of the district court of appeal was, however, modified by that court on May 26, 1921, with the result that the judgment of the district court of appeal in the matter, as finally given, was given on May 26, 1921, and does not be

p. 335
come final in that court until thirty days thereafter, viz., on June 25, 1921, and the jurisdiction of this court to grant a petition for hearing herein continues for thirty days thereafter, viz., to and including July 25, 1921.

A different situation would he presented if the modification hy the district court of appeal had been solely with regard to its opinion. Such a modification would not have affected the judgment, which would in that event have become final in that court on May 26, 1921, with the power in this court to grant a hearing within thirty days thereafter. (See National Bank of California v. Los Angeles etc. Co., 2 Cal. App. 659 , 663, [ 84 Pac. 466 , 468].)

The petition for a hearing filed herein June 4, 1921, will be considered as duly filed herein, and will be acted upon prior to the expiration of the time within which it may be considered by this court, viz., on or before July 25, 1921.

All the Justices concurred.

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