In re Estate of Levinson

Full title: In the Matter of the Estate of JOHN LEVINSON, Deceased

Court: Supreme Court of California

Date published: Nov 23, 1895

108 Cal. 450 (Cal. 1895)

41 P. 483

Opinion

108 Cal. 450 41 P. 483 In the Matter of the Estate of JOHN LEVINSON, Deceased No. 15916 Supreme Court of California November 23, 1895

         Department Two

         108 Cal. 450 at 459.

         Original Opinion of August 6, 1895, Reported at 108 Cal. 450.

         OPINION

         THE COURT          A motion having been made to recall the remittitur, the following opinion was rendered thereon on the 23d of November, 1895:

         The Court.

         Motion to recall the remittitur herein for the purpose of securing a modifical of the direction made therein for the payment of the costs of the appeal.

         Without reference to the merits of the motion, it comes too late. The remittitur was regularly issued on September 6, 1895, and this motion was not noticed until October 18th following. If respondent desired a modification of the judgment in any respect, the proper application should have been made before the going down of the remittitur. (Gray v. Palmer , 11 Cal. 341.) When the remittitur has been duly and regularly issued, without inadvertence, we have no power to recall it. This court thereupon loses jurisdiction of the cause, except in a case of mistake, or of fraud or imposition practiced upon the court, neither of which elements appear in this case. (People v. Sprague , 57 Cal. 147; Rowland v. Kreyenhagen , 24 Cal. 52.)

         Motion denied.