Broy v. Calavera Central Gold Mining Co.

SPENCE, J. Respondent has made a motion to recall the remittitur heretofore issued in the above-entitled cause and to strike therefrom the portion which assesses costs against respondent. Said motion was made upon the ground that the judgment of the trial court “was ordered modified by this court” and that “no order was made in this court in its opinion rendered in said action that the appellants should recover their costs”.

The opinion in the above-entitled cause (Broy v. Calaveras Central Gold Min. Co., 18 Cal. App. (2d) 371 [64 Pac. (2d) 456, 460]) concluded as follows: “It follows that the judgment should be reversed, that the findings should be reframed not inconsistent with what we have said, and that a judgment in favor of all the defendants should be entered thereon. It is so ordered.” Pursuant to the provisions of rule XXIII [233]of the Rules for the Supreme Court and District Courts of Appeal, the clerk of this court inserted in the remittitur a ■judgment that appellants recover their costs of appeal.

In our opinion, respondent’s motion must be denied. The appeal resulted in a reversal with directions and appellants were the prevailing parties and were entitled to their costs. Said appeal did not result in a modification of the judgment and no proceedings were had pursuant to the provisions of section 956a of the Code of Civil Procedure as claimed by respondent. Hence the cause did not fall within the exceptions set forth in section 1034 of the Code of Civil Procedure and the matter of costs was not within the discretion of this court.

The motion is denied.

Nourse, P. J., and Sturtevant, J., concurred.