Meads v. Lasar — 93 Cal. 530

Majority

p. 530

[No. 14226.

In Bank.

March 5, 1892.]

L. H. MEADS et al., Respondents, v. M. LASAR et al., Appellants.

Headnote

Appeal — Claim and Delivery — Modification op Judgment — Costs of Appeal—Bule op Court—Remittitur.—A decision on appeal, in an action of claim and delivery, directing the trial court to correct its judgment so as to make it in the alternative, is a clear and important modification of the judgment within the meaning of rule 24 of the supreme court, and if the decision contains no direction as to costs of appeal, the clerk may properly enter upon the record, and insert in the remittitur a judgment for such costs in favor of the appellant, in compliance with that rule.

Motion in the Supreme Court to recall a remittitur. The facts are stated in the opinion of the court.

S. F. Geil, J. W. Wilcoxen, J. J. Wyatt, and H. V. Morehouse, for Appellants.

W. M. R. Parker, G. Webster, Charles E. Nouges, and Dorn & Parker, for Respondents.

This is a motion of respondent for an order recalling the remittitur hereinbefore issued, because, as is contended, the clerk of this court inadvertently or improperly inserted in the judgment the words “ with costs.”

The action was “ claim and delivery,” and the verdict of the jury was in favor of the plaintiffs for the property sued for, or its value, which was found to be one thousand dollars. The clerk of the trial court, however, entered judgment against defendants for one thousand dollars, and not in the alternative. The defendants appealed from the judgment, and from an order denying a new trial; and this court, in its opinion in deciding the appeal, after holding that the judgment should have been in the alternative, said: “ This error, however, can be corrected by an amendment of the judgment,” and ordered judgment in these words: “ The order denying a new trial is affirmed, but the court below is directed to correct the judgment as entered, by making it conform to the verdict, and as so corrected it will stand affirmed.” (See Meads v. Lasar, 92 Cal. 221 .) This was a clear aqd quite important modification of the judgment; and the clerk of this court properly included costs in the judgment entered in this court under rule 24, which provides that “in all cases in which the judgment or order appealed from is reversed, or modification contains no direction as to costs of appeal, the clerk will enter upon the record, and insert in the remittitur, a judgment that the appellants recover the costs of the appeal.” There is therefore no ground for granting the motion here pnade, — assuming that this court has the power to recall the remittitur under certain contingencies.

The motion is denied.

Gaboutte, J., De Haven, J., Habbison, J., Patebson, J., and Shabpstein, J., concurred.

Cases cited

Meads, Seaman & Co. v. Lasar 92 Cal. 221 Cal. 1891-12-11 p. 530