
    Submitted on motion to recall mandate.
    Opinion on the merits September 14,
    motion denied December 20, 1927.
    AUSTIN OSBURN v. MARY H. De FORCE, Administratrix.
    (262 Pac. 222.)
    Appeal and Error — Error in Permitting Amendment to Complaint is not Properly Raised by Motion to Recall and Correct Mandate.
    1. Question of trial court’s error in permitting amendment to complaint after mandate is reviewable on appeal, and is not properly raised by motion to recall and correct mandate.
    
      Appeal and Error — -Propriety of Amended Complaint is not Determinable on Motion to Recall and Correct Mandate.
    2. Propriety of amended complaint cannot be determined by Supreme Court on a motion to recall and correct a mandate.
    Appeal and Error, 4 C. J., p. 1245, n. 95.
    From Clatsop: Fred W. Wilson, Judge.
    In Banc.
    Motion Denied.
    For the motion, Mr. John W. Kaste and Mr. Nicholas Jaureguy.
    
    
      Contra, Messrs. G. C. S A. C. Fulton and Mr. James L. Mope.
    
   COSHOW, J.

This matter comes on to be heard on the motion of defendant to recall and correct the mandate. The mandate remanded the case for a new trial. Defendant complains because a new trial was ordered. We are not given the benefit of any authority or citations of authorities supporting the motion. We refused to try the question of damages demanded in the counterclaim of the defendant because we thought it could be better tried by a jury. If the court has erred in permitting the complaint to be amended .giR u;-2l-od. mJh afijdp^d-t-,ss-ipfiapt.irrg -tire-motion, that eri(u>r can be corrected upon appeJL Thst question is riot properly raised by the motion. We do not think that the mandate is erroneous. We decline to express an (opinion upon the question of the amended complaint which, ;ie. mot before us. The propriety of the amended complaint determined upon a motion to recall and correct C mandate. For these reasons the motion to recall and correct the mandate is denied.

Motion Denied.  