People v. McDermott

Beatty, C. J. This is a motion to recall the remit titur and reinstate the appeal in a cause wherein the judgment was affirmed without examination of the record by reason of the failure of counsel for appellant to file a brief or to appear at the time set for the hearing. The facts of the case are as follows: February 18, 1892, defendant was convicted in the superior court of Ventura County of murder in the second degree; on February 23d he appealed; March 30th he filed the printed transcript of the record at Los Angeles, — five days before the commencement of the April term at Los Angeles and thirty-three days before the commencement of the May term at Sacramento. The cause was not placed upon either the Los Angeles or the Sacramento calen[248]dar, but was placed upon the calendar for the July term at San Francisco, and set down for hearing on July 27th. On that day, there being no brief on file, and no appearance of counsel for appellant, the judgment and order appealed from were, on motion of the attorney-general, affirmed. (Pen. Code, sec. 1253.) After the expiration of thirty days, a remittitur was issued, and was, we presume, filed with the clerk of the superior court of Ventura County, though the papers before us do not show that fact. At the Los Angeles term in October, this motion was submitted upon affidavits, which show that the failure of counsel for appellant to appear in his behalf on the day set for the hearing of his appeal was solely due to inadvertence upon their part. It seems that' counsel, recognizing the fact that the record was filed too late for the Los Angeles calendar, requested the deputy clerk there to have the cause placed on the Sacramento calendar. In the last week of April, in response to their inquiry, the clerk informed them that the cause was not on the Sacramento calendar, whereupon they assumed that it would not be heard until the October term at Los Angeles, and never knew that it had been placed upon the San Francisco calendar until September 7th, when they learned that the judgment had been affirmed.

The question arising upon this state of facts is, whether this court has any power to recall the remittitur and reinstate the appeal; whether, in other words, we have not lost all jurisdiction over the cause by the issuance of the remittitur and its filing in the superior court.

It is the settled law of this state that when a remittitur has been regularly issued and filed, when there has been no violation of law or of our own rules in ordering the remittitur, no mistake of facts and no fraud or imposition practiced by the prevailing party upon the court,, or upon the losing party, our jurisdiction over the cause is at an end, and our judgment final. (Rowland v. Kreyenhagen, 24 Cal. 52, and cases therein cited; People v. Sprague, 57 Cal. 147; Vance v. Pena, 36 Cal.