Opinion
Department One
80 Cal. 609 at 609.
Original Opinion of September 30, 1889, Reported at 80 Cal. 609.
OPINION
THE COURT
A petition for a hearing in Bank having been subsequently filed, the following opinion was rendered thereon in Bank on the 29th of October, 1889: -- The Court.
On rehearing. Counsel for appellant has filed an earnest and elaborate petition for a rehearing in this case, in which he urges upon us his good faith in prosecuting the appeal, and contends that damages should not have been assessed.
We cannot, after reading this petition, question the good faith of counsel in taking the appeal. He was undoubtedly of the belief that there was sufficient ground for reversing the case. But we are still of the opinion that this belief was wholly unfounded. Therefore, the question is, whether or not the right and duty of this court to assess damages depends upon the belief of the attorney for appellant that he has sufficient ground for a reversal. The code provides, "When it appears to the appellate court that the appeal was made for delay, it may add to the costs such damages as may be just." ( Code Civ. Proc., sec. 957.)
In many cases the appeal may be prosecuted with the full belief that the cause may be reversed, and not only the appeal be taken, but the reversal desired for delay only. This may, and generally does, occur where the appeal does not affect the merits of the case, but rests entirely on technical grounds. The case before us is one of this kind. The cause of action was that the appellants, as real estate agents, had sold the respondent's land for one price and reported the sale to her at a less sum, and pocketed the difference. The evidence was not brought up, nor was it questioned by the appeal that the decision against the appellants was right on its merits. As was said in the former opinion, the appeal rested entirely on objections to the findings, which in our judgment were not only purely technical, but, in fact, wholly without foundation. A reversal, if the technical objections had been sustained, would not have reached the merits of the case, but would only have resulted in delay. It is fair to presume that this was the sole object of the appeal, as this would have been the only result, in view of the fact that the merits of the case were not presented to this court. It seems to us, therefore, that if there ever was a case in which the assessment of damages was not only justifiable, but eminently proper, this was such a case. In the crowded condition of the business of this court, it is due not only to the respondent, whose right to the recovery of her money is delayed, but to the court and other litigants whose appeals are waiting to be heard, that the respondent should be properly remunerated for the delay, and this kind of appeals be discouraged.
For these reasons the petition for a rehearing, and for a modification of the judgment by striking out the assessment of damages, is denied.