Opinion
Docket No. L.A. 8700.
April 8, 1929.
MOTION to recall remittitur. Motion granted.
The facts are stated in the opinion of the court.
Brobeck, Phleger Harrison and George D. Collins, Jr., for Appellant.
Lloyd Wright and Ford, Johnson Bourquin for Respondent H.M. Driscoll.
THE COURT.
[1] On appeal by the defendant from a judgment in an action in partition, this court modified the interlocutory decree by striking out two whole paragraphs thereof and inserting new provisions in their stead. The interlocutory decree, as modified, was affirmed. The judgment was silent as to costs, but, through mistake and inadvertence, and contrary to the provisions of rule XXIII of this court, the remittitur, when issued, contained a provision that respondents recover costs on appeal. The appellant has made a motion to recall the remittitur for the purpose of striking therefrom the provision, "the respondents to recover costs on appeal," and inserting therein the provision that the appellant recover the costs of appeal.
Rule XXIII of this court provides: "In all cases in which the judgment or order appealed from is reversed or modified, and the order of reversal or modification contains no directions as to the costs of appeal, the clerk will enter upon the record, and insert in the remittitur, a judgment that the appellant recover the costs of appeal. . . ."
The motion is, therefore, granted. The remittitur is recalled for the purpose of correction as prayed for, and it is ordered that a correct remittitur be issued in its place, nunc pro tunc, pursuant to the requirements of rule XXIII, supra. (See San Joaquin etc. Irr. Co. v. Stevinson, 165 Cal. 540 [ 132 P. 1021]; Estate of Steehler, 197 Cal. 67 [ 239 P. 718]; Estate of Johnson, 200 Cal. 307 [ 252 P. 1052].)