Richardson v. Chicago Packing & Provision Co.

California Supreme Court

Richardson v. Chicago Packing & Provision Co.

67 P. 769, 135 Cal. 311, 1902 Cal. LEXIS 794

CourtCalifornia Supreme Court

DecidedJanuary 4, 1902

DocketS.F. No. 1689.

StatusPublished

Cited by8 cases

This text of 67 P. 769 (Richardson v. Chicago Packing & Provision Co.) is published on Counsel Stack Legal Research, covering California Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Richardson v. Chicago Packing & Provision Co., 67 P. 769, 135 Cal. 311, 1902 Cal. LEXIS 794 (Cal. 1902).

Pincite

Opinion

McFARLAND, J.

This is a motion by fourteen persons for an order to recall the remittitur hereinbefore issued in the above-entitled cause, and to take further proceedings therein.

The moving parties were defendants in the superior court and recovered judgment against the plaintiff therein, Fortin, for the aggregate amount of $1,793.82, to be divided between them as directed by the judgment, $123.70 thereof to be paid to the defendant therein, D. W. Patterson. Fortin appealed from the judgment and from an order denying his motion for a new trial. The appeal was regularly heard and submitted here, and on December 19, 1900, this court rendered its decision, reversing the judgment and order appealed from, and ordered a new trial. In thirty days thereafter, the remittitur in question went down to the court below. This present motion was made September 27, 1901, about eight *312 months after the remittitur had gone down. The motion is based on the asserted fact that said Patterson, now deceased, was an adverse party, and that neither he nor his administratrix was properly served with the notice of appeal. Fortin denies that Patterson was an adverse party, and shows that he had paid Patterson’s judgment and dismissed as to him. It is still contended by the moving parties that, notwithstanding this settlement with Patterson, the latter might be affected by future phases of the litigation.

When a remittitur has gone down to the lower court, this court has lost jurisdiction of the case, unless it has been issued inadvertently, or some fraud or imposition had been practiced upon the court or the opposite party; and in such case the remittitur is not recalled upon the theory that this court can resume a jurisdiction once lost, but upon the principle that an order made inadvertently, or obtained by fraud, may be treated as a nullity, and the case considered as still pending in this court. (See Trumpler v. Trumpler, 123 Cal. 248, and cases there cited.) But there is nothing in the case at bar that brings it within this principle. This court, therefore, had lost jurisdiction of the above-entitled cause when the motion to recall was made.

The motion is denied.

Harrison, J., Garoutte, J., and Beatty, C. J., concurred.

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McFARLAND, J.

This is a motion by fourteen persons for an order to recall the remittitur hereinbefore issued in the above-entitled cause, and to take further proceedings therein.

The moving parties were defendants in the superior court and recovered judgment against the plaintiff therein, Fortin, for the aggregate amount of $1,793.82, to be divided between them as directed by the judgment, $123.70 thereof to be paid to the defendant therein, D. W. Patterson. Fortin appealed from the judgment and from an order denying his motion for a new trial. The appeal was regularly heard and submitted here, and on December 19, 1900, this court rendered its decision, reversing the judgment and order appealed from, and ordered a new trial. In thirty days thereafter, the remittitur in question went down to the court below. This present motion was made September 27, 1901, about eight *312 months after the remittitur had gone down. The motion is based on the asserted fact that said Patterson, now deceased, was an adverse party, and that neither he nor his administratrix was properly served with the notice of appeal. Fortin denies that Patterson was an adverse party, and shows that he had paid Patterson’s judgment and dismissed as to him. It is still contended by the moving parties that, notwithstanding this settlement with Patterson, the latter might be affected by future phases of the litigation.

When a remittitur has gone down to the lower court, this court has lost jurisdiction of the case, unless it has been issued inadvertently, or some fraud or imposition had been practiced upon the court or the opposite party; and in such case the remittitur is not recalled upon the theory that this court can resume a jurisdiction once lost, but upon the principle that an order made inadvertently, or obtained by fraud, may be treated as a nullity, and the case considered as still pending in this court. (See Trumpler v. Trumpler, 123 Cal. 248, and cases there cited.) But there is nothing in the case at bar that brings it within this principle. This court, therefore, had lost jurisdiction of the above-entitled cause when the motion to recall was made.

The motion is denied.

Harrison, J., Garoutte, J., and Beatty, C. J., concurred.

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Bluebook (online)

67 P. 769, 135 Cal. 311, 1902 Cal. LEXIS 794, Counsel Stack Legal Research, https://law.counselstack.com/opinion/richardson-v-chicago-packing-provision-co-cal-1902.

Opinion

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