
    [No. 12235.
    In Bank.
    March 31, 1890.]
    JULIA HERRLICH, Respondent, v. MAGGIE McDONALD, Appellant.
    Appeal — Recalling Remittitur — Motion to Modify Judgment as to Damages — Jurisdiction of Supreme Court. — When a remittitur issues in regular course, the jurisdiction of the supreme court ends; and when a remittitur has been issued after the expiration of thirty days from the date of a Department decision, the pendency of a motion to modify the judgment, or the failure of the court to record its decision refusing an oral motion to that effect, will not affect the regularity of the remittitur, and it will not be recalled. (Paterson, J., and Fox, J., dissenting.)
    Motion to recall a remittitur issued upon appeal from a judgment of the Superior Court of the city and county of San Francisco.
    The facts are stated in the opinion of the court.
    
      Whittemore & Sears, and W. B. Tyler, for Appellant.
    
      Charles F. Hanlon, for Respondent.
   McFarland, J.

— This case is before the court upon a motion of appellant to recall the remittitur.

The cause was heard in Department One, and the judgment of the court below was affirmed, with fifteen per cent damages, the opinion of the court in Department having been filed September 7, 1889 (80 Cal. 460). At the end of thirty days the remittitur issued as usual, no petition for hearing in Bank having been filed.

The motion to recall the remittitur is based on an affidavit of appellant’s counsel, to the effect that on September 16,1889, he made a motion in Department One to modify the judgment by striking off the said fifteen per cent damages, and that said motion had never been decided. The records of the court do not show that any such motion was made. As a matter of fact, however, counsel did make such a motion or request orally, but it is also true that the court (Department One) did consider the motion, and decided against granting it, although that decision does not appear on the records. So the record does not show anything about the matter. But assuming the facts to be as stated in the affidavit, as there was no order made that the cause he heard hy the court in Bank, the judgment became final, under the constitution, in thirty days, and the remittitur, in usual course, went down to the lower court. The pendency of appellant’s said motion—assuming that it was pending — could not prevent that result. And when a remittitur issues in regular course, the rule is, that the jurisdiction of this court ends. Whether or not the court would have power to recall a remittitur issued through its own inadvertence, it is not necessary here to determine; there was no such inadvertence in this case. As there was no petition for hearing in Bank under rule 30, there was nothing for this court to act upon within the thirty days; and at the expiration of that time the remittitur issued regularly, and not inadvertently. (See Adams v. Dohrmann, 63 Cal. 420.)

Motion to recall remittitur denied.

Sharpstein, J., Thornton, J., and Beatty, C. J., concurred.

Pa.terson, J., dissenting.

I am unable to concur in the conclusion of the majority. The fifteen per cent damages were imposed without notice to the appellant, and upon learning the fact, her counsel, before the expiration of the thirty days, came in and moved the court to modify the judgment by striking out the damages which it had added without a hearing. The motion w7as submitted, and I think he had the right to assume that the court w;ould control its remittitur until all matters affecting the judgment had been passed on. But it is said the motion was decided, although no record was made of it. This is true, but it was the duty of the court to make a record of its action which would give the party affected by it notice and an opportunity to be heard. If such record liad been made, he could have petitioned for a rehearing before the remittitur issued. When a party thus loses a right which but for the mistake of the court would have been preserved to him, it seems to me we ought to say the remittitur was issued through inadvertence, and should be recalled. The fact that no petition for rehearing was filed within the thirty days does not seem to me to be material. The moving party sought only to have the damages (amounting to over one thousand dollars) stricken out. If the Department had granted the motion which was submitted to it, there would have been no necessity for a rehearing.

Fox, J., concurred with Justice Paterson.  