Gutelius v. General Electric Co.

MOORE, P. J.

The decision of this court upon the appeal of the action is contained in our written opinion filed February 26, 1940. (37 Cal. App. (2d) 455 [99 Pac. (2d) 682].) Petition for rehearing in this court having been denied on or about March 15, 1940, the petition for hearing in the Supreme Court having been denied on the 25th of April, the

remittitur

was filed in the superior court on the 29th day of April, 1940. On May 2, 1940, appellant filed its notice of motion to recall said

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and for an “order amending the judgment,

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and mandate” of this court by directing that judgment be entered in favor of defendant instead of the order merely reversing the judgment.

The grounds of appellant’s motion are: (1) That the holding of this court is that plaintiff cannot recover; (2) that upon no theory could plaintiff make any further substantial showing; (3) that the omission of this court to direct the entry of judgment in favor of defendant was inadvertent.

Appellant’s motion must be denied for the very good reason that the order heretofore entered was not made through inadvertence or because of any mistake of fact or incomplete information. Moreover, the motion was not timely presented.

In the case of

Heroux

v.

Atchison, Topeka & Santa Fe R. R.,

35 Cal. App. (2d) 128 [94 Pac. (2d) 820], we declared that “where an aggrieved party is cognizant of fraud or mistake upon which the appellate court has based its decision, unless such party acts promptly and at the first opportunity to call the court’s attention thereto, an order recalling the

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will not be made after the same has been issued”. The basis of appellant’s motion now is neither fraud nor mistake, yet it does found its motion upon “inadvertence” of this court. If this court entered said decision through inadvertence, that fact was as well known to appellant immediately upon his reading our opinion as it could have been at any time. Any error or inadvertence in an opinion may as well be called to the attention of the court immediately upon the filing of the