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In re Burnett

8 Cal. App. 2d 363 Court Fourth Appellate District. Decision date 1935-07-10 Docket Civ. No. 1379 English

Delivered by MARKS, J.

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p. 363
[Civ. No. 1379.
Fourth Appellate District.
July 10, 1935.]
In the Matter of the Estate of W. I. BURNETT, Deceased.
p. 364
Robert B. Gaylord and W. R. Bailey for Appellant.
Russell & Heid for Respondents.

This is a motion to recall a remittitur and to order a corrected remittitur to be issued nunc pro tunc.

On April 11, 1935, this court filed its decision in the matter of the Estate of W. I. Burnett, Deceased, and reversed a decree of distribution without making any provision for the payment of costs. (Estate of Burnett, 6 Cal. App. (2d) 116 [ 44 Pac. (2d) 435 ].) On June 11, 1935, a remittitur was issued in which the following erroneously appeared:' “Appellant to recover costs on appeal.” (Sec. 1232, Probate Code.)

In Estate of Erickson, 4 Cal. App. (2d) 602 [ 41 Pac. (2d) 939 ], where a similar question was before the court, a similar motion was granted. (See Estate of Johnson, 200 Cal. 307 [ 252 Pac. 1052 ].)

It is ordered that the remittitur issued by the clerk of this court on June 11, 1935, in the matter of the Estate of W. I. Burnett, Deceased, be recalled and that a corrected remittitur be issued in its place, nunc pro tunc, omitting the words, “Appellant to recover costs on appeal.”

Barnard, P. J., and Jennings, J., concurred.

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