Richardson v. Chicago Packing & Provision Co.

McFARLAND, J.

This is a motion by fourteen persons for an order to recall the

remittitur

hereinbefore issued in the above-entitled cause, and to take further proceedings therein.

The moving parties were defendants in the superior court and recovered judgment against the plaintiff therein, Fortin, for the aggregate amount of $1,793.82, to be divided between them as directed by the judgment, $123.70 thereof to be paid to the defendant therein, D. W. Patterson. Fortin appealed from the judgment and from an order denying his motion for a new trial. The appeal was regularly heard and submitted here, and on December 19, 1900, this court rendered its decision, reversing the judgment and order appealed from, and ordered a new trial. In thirty days thereafter, the

remittitur

in question went down to the court below. This present motion was made September 27, 1901, about eight

[312]

months after the

remittitur

had gone down. The motion is based on the asserted fact that said Patterson, now deceased, was an adverse party, and that neither he nor his administratrix was properly served with the notice of appeal. Fortin denies that Patterson was an adverse party, and shows that he had paid Patterson’s judgment and dismissed as to him. It is still contended by the moving parties that, notwithstanding this settlement with Patterson, the latter might be affected by future phases of the litigation.

When a

remittitur

has gone down to the lower court, this court has lost jurisdiction of the case, unless it has been issued inadvertently, or some fraud or imposition had been practiced upon the court or the opposite party; and in such case the

remittitur

is not recalled upon the theory that this court can resume a jurisdiction once lost, but upon the principle that an order made inadvertently, or obtained by fraud, may be treated as a nullity, and the case considered as still pending in this court. (See