Majority
p. 640[No. 2,879.] BERNAL v. WADE.
Headnote
Recalling Remittitur.—If a 'petition for rehearing is deposited in an express office (the usual mode of conveyance), addressed to the Clerk, in time to have reached him before the period for rehearing expires, and is delayed, or lost without fault of the attorney, so that it does not reach the Clerk’s office in time, and a remittitur issues, the remittitur will be recalled and the attorney will be allowed to file the petition.Application to recall remittitur and to he allowed to file a petition for a rehearing.
The appeal, which was from a judgment rendered in the District Court of the Third Judicial District, City and County of San Francisco, was decided October 14th, 1873.
T. H. Laine, for Appellants, moved, upon an affidavit showing the facts stated by the Court, that the remittitur he recalled and the petition filed.
The time to file the petition for a rehearing expired on November eighth. The petition was placed in the express office at San José for transmission to the Clerk of this Court, and should have reached him in time to be filed, but it was not, in fact, received until the tenth of November, when the remittitur had been sent to the Court below. The case is not distinguishable from that of Hanson v. McCue, 43 Cal. 178 , and the remittitur must, therefore, be recalled and the petition for a rehearing placed on file.
So ordered.
Cases cited
- Hanson v. McCue 43 Cal. 178 p. 640