
    [No. 9877.
    Department Two.
    May 22, 1912.]
    Freda Dyer, Appellant, v. S. S. Dyer, Respondent.
      
    
    Appeal — Decision—Judgment Against Surety — Recall of Remittitur. Where the supreme court inadvertently omitted to enter judgment for costs against both sureties, the remittitur will be recalled and the proper judgment entered.
    Appeal — Judgment for Costs — Sureties—Offset. Upon motion to recall a remittitur to enter proper judgment for the costs allowed against sureties on an appeal bond, the surety cannot urge an offset on account of expense incurred.
    Motion to recall remittitur and enter judgment for costs against surety; and counter petition for offset against costs.
    Motion granted and petition denied.
    
      if. W. Leuders, for appellant.
    
      Garvey, Kelly MacMahon, for respondent.
    
      
      Reported in 123 Pac. 774.
    
   Per Curiam.

Upon the appeal bond in this case, Fred McKee and the National Surety Company appeared as sureties. The judgment and remittitur of this court, upon affirmance of the judgment below, inadvertently omitted the name of Fred McKee, and gave judgment against the other surety only. The National Surety Company now moves this court to recall the remittitur and enter judgment against both sureties. Such is the manifest duty of this court, and it will be so ordered.

In this connection Fred McKee files a petition in which he sets forth the expense incurred by him in the support and maintenance of the minor children whose custody was involved in the judgment appealed from, and asks that, for such reason, he be relieved from the payment of the costs on appeal. Such a petition cannot be considered by us. We know of no rule that would permit of such an offset against costs properly awarded on appeal. The petition of Fred McKee for relief is therefore denied.

The remittitur will be recalled and judgment for costs and the whole thereof entered against Fred McKee and the National Surety Company as sureties on the appeal bond.  