Parker v. Bernal — 68 Cal. 122

Majority

p. 122

[No. 11018.

Department Two.

—November 27,1885.]

C. H. PARKER, Respondent, v. J. BERNAL et al., Appellants.

Headnote

Practice — Judgment — Amendment aster Appeal. — A motion to strike out material portions of a judgment cannot be made after the judgment has been affirmed on appeal, and the remittitur filled in the lower court, where all the questions involved in the motion might have been brought before the court and determined on,the appeal.

Appeal from an order of the Superior Court of the city and county of San Francisco.

The facts sufficiently appear from the opinion of the court.

Moses G. Cobb, for Appellants.

Charles H. Parker, for Respondent.

The judgment in this case was affirmed and the remittitur sent from this court to the court below. After the remittitur was received and filed in the court below, a motion was made by defendants to amend the judgment which had been affirmed by striking out some portions of it which were material to such judgment. This motion was denied, and from the order denying it this appeal is prosecuted.

No reason which commends itself to our judgment appears for granting such a motion. The affirmance of the judgment foreclosed all such questions as those which would arise on the motion. If the defendants, or any of them, were aggrieved by the portions of the judgment

p. 123

sought to be stricken out, they should have been brought before this court on the former appeal. The judgment disposed finally of all the questions involved in the motion.

Further, it is said that the portions of the judgment sought to be stricken out were inserted by the clerk without authority and by inadvertence. The denial of the motion by the court disposes of the question of inadvertence on the testimony before it, adversely to the defendants, and we find no error in the court so ruling.

The appeal in this case was taken for delay, and the order is affirmed, with one hundred dollars damages. Ordered accordingly.