Kling v. Gustason

BURNELL, J.,

pro tem.

Respondent moves this court to recall the

remittitur

issued herein on part reversal of the judgment (101 Cal. App. 58 [281 Pac. 407]) and to issue another

remittitur

in its place, omitting therefrom the words "appellant to recover costs on appeal.”

The action was one for attorney’s fees, the defendant responding thereto by a pleading referred to by the parties both as a cross-complaint and a counterclaim—and to which the plaintiff interposed an answer—seeking to recover damages for alleged negligence of the plaintiff as an attorney in the handling of various matters for the defendant. On the issues tendered by the counterclaim and the answer thereto the court below failed to make any findings. As to the award of attorney’s fees the judgment was affirmed on appeal, as modified, however, by the deduction therefrom of interest erroneously allowed and a small sum representing a mistake in addition. The reversal was based upon the failure of the court below to find upon the issue as to plaintiff’s alleged negligence and the damage claimed to have been suffered by defendant therefrom.

The fact that the error as to amount of the award of attorney’s fees might have been corrected in the trial court is immaterial for any purpose relevant to the present motion. Had it been there corrected and judgment entered for the

[577]

amount as to which we affirmed that portion of the judgment, appellant would still have had the right to prosecute an appeal for the purpose of reviewing the action of the court below as to the other branch of the case. Having successfully done so, he is entitled to his costs.

The motion is denied.

Craig, Acting P. J., and Thompson (Ira F.), J., concurred.