Opinion
Department 2. Motion for order for restitution.
SYLLABUS
APPEAL -- REVERSAL -- RESTITUTION BY LOSING PARTY.
Where, on appeal, a judgment is reversed, the appellate court will not compel restitution by the losing party of money which was not paid after, or in consequence of, the judgment appealed from, but was paid in consequence of an order made prior to the judgment, which order was not appealed from.
Langhorne & Miller, for appellant.
J. D. Sullivan and D. H. Whittemore, for respondent.
MYRICK, J., I concur: MORRISON, C. J., THORNTON, J., (concurring.)
OPINION
MYRICK, J.
Motion for an order for the repayment of money under section 957, Code Civil Proc. When the case was before us on appeal from the judgment, (7 P. 480,) we reversed that part of the judgment which directed the payment of $1,000 counsel fees by the defendant to the attorneys for the plaintiff; the action being for a divorce. It does not appear, from the affidavits used on the motion, that the money was paid after, and in consequence of, the judgment appealed from. If the money was paid in consequence of an order made prior to the judgment, such order was not appealed from. Motion denied, and order staying remittitur vacated.
I concur: MORRISON, C. J.
CONCUR BY: THORNTON
CONCUR
THORNTON, J., (concurring.)
I concur in the denial of the motion herein, on the ground that the motion authorized by section 957, Code Civil Procedure, is one against a party to the action, and not one, as this is, against the attorneys of a party.