Chin Ott Wong v. Title Insurance & Trust Co.

California Court of Appeal Mar 30, 1949 No. Civ. 16494Published

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Holding. The court held that it lacked jurisdiction to amend its judgment or opinion after the remittitur had issued and the decision had become final, as the alleged oversight did not constitute the type of inadvertence, fraud, or mistake that permits recall of a remittitur.

Issues

Whether an appellate court has jurisdiction to amend its judgment or opinion after the remittitur has issued and the decision has become final.
Whether the court's failure to include directions for entry of judgment for defendants constitutes 'inadvertence' justifying the recall of a remittitur.

Disposition. Motion granted; order of March 14, 1949, vacated and set aside.

Quotations verified verbatim against the opinion

“An appellate court, after the issuance of a remittitur, does not have the power to recall the same for the purpose of reconsidering or modifying its decision, in the absence of (1) inadvertence, (2) fraud, or (3) mistake.”

“any attempt upon our part to give such directions now in effect amounts to an amendment of the judgment on appeal and the opinion upon which it was based after the court had lost jurisdiction.”

“The judgment having become a finality, the claimed inadvertence was not such as would warrant the court in modifying or amending the judgment or remittitur issued pursuant thereto.”

THE COURT.

The record in this case discloses that the judgment on appeal was pronounced on December 16, 1948 (89 Cal.App.2d 183 [200 P.2d 541]), and that on February 10, 1949, the Supreme Court made its order denying respondents’ petition for a hearing of the cause before that court. On February 15, 1949, the remittitur was forwarded to the trial court. On February 28, 1949, and after the remittitur was lodged in the superior court, this court made its order recalling the same. Subsequently, and on March 14, 1949, this court made the following order:

“The concluding clause of the opinion heretofore filed in the above entitled appeal having failed to correctly set forth the conclusions of this Court as stated in said opinion, it is hereby ordered that said opinion be corrected by adding to the last sentence of the last paragraph of said opinion the words ‘with directions to the court below to enter judgment for the defendants. ’ ’ ’

Thereupon respondents made a motion in this court “to recall remittitur and to vacate orders. ’ ’ At the hearing upon such motion respondents contended that the aforesaid order of March 14 was made after this court had lost jurisdiction either to alter or amend its judgment on appeal or any part of the opinion upon which such judgment was based.

An appellate court, after the issuance of a remittitur, does not have the power to recall the same for the purpose of reconsidering or modifying its decision, in the absence of (1) inadvertence, (2) fraud, or (3) mistake. In the instant ease there is no claim of fraud or mistake, but appellants insist that there was inadvertence because that term means simply an oversight, and that if through oversight this court neglected to direct the entry of judgment in their favor upon issuance of the remittitur, we are authorized to recall the same to correct such inadvertence or oversight. That it was for the court to determine whether the decision rendered, and the remittitur issued thereon, was complete and all that it was intended to be, or whether through inadvertence it was deficient.

(Livesay

Deibert,

3 Cal.App.2d 140, 147 [39 P.2d 466].) That we alone knew whether a mistake had been made

[3]

Chin Ott Wong v. Title Insurance & Trust Co.

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THE COURT.

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