Welch v. Sullivan — 1 Cal. Dist. Ct. 356

Majority

p. 356

WELCH vs. SULLIVAN.

Fourth District Court for San Francisco Co.,

December, 1857.

Headnote

Judgment on Remittitur.

The clerk of the court should enter the judgment upon the remittitur of the supreme court when it specifically directs the particular judgment to be entered; but if the supreme court require a modified judgment to be entered according to the opinion delivered, application should be made to the lower court to order such judgment.

Motion to set aside a judgment on remittitur entered by the clerk. The material facts are set forth in the opinion.

jV. Bennett and E. Cook, for plaintiff.

Saunders $ Hepburn, for defendant.

In this action the remittitur of the supreme court, with the opinion of the judges, has been filed, directing the judgment of this court should be modified in accordance with the opinion, with costs for the appellants. It appears that the plaintiff has proceeded to have a modified judgment entered in the clerk’s office, without notice to the' defendant, or application to this court. The question involved is this : Is the entry of the modified judgment a ministerial act to be performed by the clerk, under §358 of the Practice Act, or a judicial act, to be first ordered by the court ? The proper practice, according to my opinion, in entering judgment upon the remittitur of the supreme court, is for the clerk to do it when the supreme court specifically direct the particular judgment to be entered; but, if the court indicate the error, and require the judgment to be modified according to the opinion forwarded with the remittitur, the entry of the modified judgment is a judicial act, and application should be made to the court. The entry of the modified judgment was irregular, and must be set aside.