Haydel v. Morton

MAXEY, J.,

pro tem.

The plaintiff herein secured a judgment against the defendant, predicated upon a charge of malicious prosecution. The case was tried before a jury and interrogatories were propounded and findings thereon duly made by the jury. Judgment was rendered in accordance with the verdict. The defendant appealed, and on March 24, 1937, this court reversed the judgment; the respondent petitioned for a hearing by the Supreme Court after judgment in the District Court of Appeal. This petition was denied by the Supreme Court on May 20, 1937. Thereafter a

remittitur

was issued out of this court and the respondent herein, on February 25, 1938, filed a motion to recall the

remittitur.

The basis of this motion is that said judgment was improvidently granted by this court upon a false suggestion by appellant; under a mistake as to the facts of the case, and through the inadvertence of the court; that the decision results in a miscarriage of justice due to the error of this court.

[385]

A motion to recall a

remittitur

is an extraordinary remedy that is only exercised in cases of fraud or imposition practiced upon the court or upon the opposite party or where a judgment is improvidently granted, upon a false suggestion, or under a mistake as to the facts of the case.

(Rowland

v.

Kreyenhagen, 24

Cal. 52 ;

Trumpler

v.

Trumpler,

123 Cal. 248, 252 [55 Pac. 1008] ;

Municipal Bond Co.

v.

City of Riverside,