Heroux v. Atchison, Topeka & Santa Fe Railway Co.

SHENK, J. Plaintiff brought this action to recover damages for personal injuries suffered in a collision between an automobile and a locomotive. From a judgment on a verdict the defendants appealed. The judgment was reversed by the District Court of Appeal on September 8, 1938. (Heroux v. Atchison, Topeka & S. F. Ry. Co., 28 Cal. App. (2d) 401 [82 Pac. (2d) 620].) No application for a rehearing in that court was made. A petition for a hearing in this court was denied November 7, and on November 9, 1938, the remittitur went down from the District Court of Appeal. On December [28624], 1938, a notice of motion was filed in that court to recall the remittitur. The grounds of the motion were stated to be, (1) that the judgment of reversal was improvidently ordered upon false suggestion and under a mistake as to the facts in the case, and (2) that fraud and imposition had been practiced' upon the court in procuring its judgment and upon counsel representing the respondent.

After hearing on the motion to recall, the District Court of Appeal found that the respondent was fully cognizant of the facts constituting the alleged fraud and mistake on and prior to that date of the judgment of reversal, to wit, September 8, 1938; that notwithstanding such knowledge no petition for a rehearing was filed in that court. The court concluded' that when the aggrieved party was cognizant or claimed the existence of fraud or mistake affecting the appellate court’s decision, it was the duty of the litigant promptly and at his first opportunity to call the court’s attention to the alleged fraud or mistake; that the respondent had the opportunity thus to call the same to the attention of the court by petition for a rehearing in that court; that failing to do so the respondent should not be permitted to delay this necessary and appropriate step until after the remittitur had gone down, and that the respondent was therefore guilty of laches in presenting the belated motion. (See, Heroux v. Atchison, Topeka & S. F. Ry. Co., (Cal. App.) 86 Pac. (2d) 841, January 24, 1939.) The court based its conclusion in part on the case of Haydel v. Morton, 28 Cal. App. (2d) 383 [82 Pac. (2d) 623], where on motion to recall the remittitur under a situation very similar to the present one it was plainly indicated that it was the duty of the aggrieved party, having full knowledge prior to the reversal of all the facts on which the claim of improvidence and mistake on the part of the appellate court in reversing the judgment for the plaintiff was based, to acquaint the court with such facts in its briefs before judgment and by petition for rehearing after the judgment was rendered.