Morgrage v. National Bank of California

THE COURT.

The judgment herein was, on appeal to this court, affirmed in an opinion filed herein on the twenty-sixth day of February, 1914.

(Morgrage

v.

National Bank of Cal.,

24 Cal. App. 103, [140 Pac. 300].) At the expiration of sixty days the clerk of the court issued to the court below a

remittitur

which contained no provision to the effect that respondent should recover its costs on appeal. On June 16, 1914, respondent moved the court for a recall of the

remittitur

and the issuance of a new one containing a judgment in its favor for such costs. No doubt exists that under the provisions of section 1027 of the Code of Civil Procedure, as amended in 1913, [Stats. 1913, p. 1033], respondent is entitled to costs as therein provided and which, as stated, were omitted from the judgment of this court. Upon authority of the opinion of the supreme court, filed May 26, 1914, in the case of

Estate of Prager,

167 Cal. 737 [141 Pac. 369], which involved the identical question here presented, it is ordered that the

remittitur

heretofore issued be recalled, and the clerk is directed to Issue in lieu thereof a new

remittitur,

inserting therein a provision that respondent recover its costs on appeal.