Reynolds v. E. Clemens Horst Co.

THE COURT.

This is an application by appellant for a stay of the issuance and transmission of the

remittitur

from "this court to the superior court of the county of Tehama. The application is made in order that appellant, before execution of the judgment, may have an opportunity to apply to the supreme court of the United States for a writ of

certiorari,

it being contended that said superior court had no jurisdiction of appellant by reason of its residence in another state. The judgment of the lower court was affirmed by this court on December 28, 1917 (35 Cal. App. 711, [170 Pac. 1082]), and a petition for a rehearing was denied. On February 25, 1918, the supreme court denied a petition to have the cause heard by that court, and the judgment has therefore become final as far as the state -courts are concerned.

There is no doubt this court has inherent power to grant the application. The same principle is involved as in the exercise of the power of courts of common law to temporarily

[530]

stay execution of their judgments, whenever it was necessary to accomplish the ends of justice.

(Eaton

v.

Cleveland Ry. Co.,

41 Fed. 421.)

Indeed, it is not disputed by counsel for respondent that the power exists. Attention is called to the fact that the supreme court has exercised control over

remittiturs

even after their issuance to prevent wrong and injustice.

(Trumpler

v.

Trumpler,

123 Cal. 248, [55 Pac. 1008].)

Respondent, however, contends with much learning and the citation of numerous decisions of the United States supreme court that there is no substantial ground for the belief that said court will entertain the writ.