Ex parte Burrill

By the Court, Currey, J. This is an application for a writ of mandamus to compel the District Judge of the Fifth Judicial District to vacate certain orders by him made in an action wherein L. Cohn was plaintiff and one Goldstein was defendant, and Knapp, Burrill & Co. were intervenors, occupying an antagonistic position to [351]the plaintiff. The action was tried in San Joaquin County, in said district, and judgment was obtained there by the plaintiff against the interveners. From this judgment the intervenors appealed to the Supreme Court. The Supreme Court, in December, 1863, reversed the judgment and remanded the cause for a new trial. Within ten days after this reversal, the appellants filed a verified bill of costs in the Clerk’s office of the Supreme Court, amounting, in the aggregate, to the sum of three hundred and eighty-five dollars and' forty-five cents. This amount consisted of seventy dollars and sixty cents, costs that accrued in the Supreme Court, and three hundred and fourteen dollars and eighty-five cents, costs that accrued in the District Court. In due time a remittitur, with which was a copy of the bill of costs, duly certified, was issued and filed in the Clerk’s office of the District Court, in San Joaquin County. Upon the remittitur was indorsed by the Clerk of the Supreme Court the costs in the case, as consisting of seventy dollars and sixty cents, paid by appellants to the Clerk of the Supreme Court, and three hundred and fourteen dollars and sixty-five cents, costs in the Court below. After the remittitur, with the certified copy of the bill of costs, was so filed, an execution was issued in the case by the Clerk of the District Court, to enforce payment of the whole sum of three hundred and eighty-five dollars and forty-five cents, and placed in the hands of the Sheriff of San Joaquin County, who, by virtue thereof, collected the entire amount. Before the money was paid over to the appellants, and before the return of the execution, the respondent, Cohn, applied to the Judge of the District Court to stay the execution, and also, the money in the Sheriff’s hands, until he could move the District Court for a re-taxation of the costs ; upon which the Judge made an order granting the application. At the term of the Court subsequently held in the County of San Joaquin, the order previously made was modified. By the modified order, the Sheriff was directed to return the execution as unsatisfied, and the Clerk of the Court was directed to issue, upon the request of the appellants, an execution in their favor against [352]