Opinion
Docket No. 1029.
September 14, 1933.
MOTION to recall Remittitur and for issuance of a new Remittitur nunc pro tunc. Motion granted.
The facts are stated in the opinion of the court.
Hamilton, Lindley Higgins and William M. Hiatt for Petitioner.
Stearns, Luce Forward, Albert J. Lee and Fred Kunzel for Respondents.
A decision was filed in this case on June 20, 1933, on a petition for a writ of review, affirming an order of the Superior Court of San Diego County granting a motion for new trial ( 132 Cal.App. 683 [ 23 P.2d 1055]). A petition for hearing by the Supreme Court was denied on August 17, 1933. Thereafter a remittitur was issued containing no provision that the respondents recover costs. They have moved for an order recalling the remittitur and directing the issuance of another, nunc pro tunc, which shall include the recovery of costs by them.
[1] Under the provisions of section 1027 of the Code of Civil Procedure, formerly section 1032 of that code, respondents should recover their costs. We have the undoubted right to recall the remittitur and order the issuance of a new one nunc pro tunc providing for the recovery of costs. ( Estate of Prager, 167 Cal. 737 [ 141 P. 369]; Estate of Johnson, 200 Cal. 307 [ 252 P. 1052]; Horan v. Varian, 207 Cal. 7 [ 276 P. 1002]; Morgrage v. National Bank of California, 25 Cal.App. 133 [ 142 P. 1124].)
It is ordered that the remittitur heretofore issued be recalled; that the clerk of this court issue in lieu thereof a new remittitur, nunc pro tunc as of the date of the former remittitur, inserting therein a provision that respondents recover their costs.
Barnard, P.J., and Jennings, J., concurred.