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

McCOMB, J. — This is a motion by respondent for an order recalling the remittitur heretofore issued herein on the grounds (1) that the judgment of this court was improvidently entered upon false suggestions and under a mistake as to the facts of the case, and (2) that fraud and imposition have been practiced upon this court in procuring its judgment and upon counsel representing respondent.

We denied this motion on January 24, 1939. [(Cal. App.) 86 Pac. (2d) 841.] Thereafter upon petition of respondent the Supreme Court granted a hearing of the motion. Sep[129]tember 6, 1939, that court, after hearing argument and submitting the matter, retransferred the motion to this court for disposition, saying in part with reference to the order granting a hearing:

“The order of transfer was made because of what was deemed at the time to be an erroneous statement of law on the face of the opinion. Later examination disclosed that there were no exceptional circumstances which would require the granting of the petition and that the denial of the motion by the District Court of Appeal was regular and should have been permitted to stand.” (Heroux v. Atchison, Topeka & Santa Fe Ry. Co., 14 Cal. (2d) 285 [93 Pac. (2d) 805].)

In view of the foregoing, our prior opinion is hereby adopted. It is as follows:

‘ ‘ The undisputed facts are:

“Respondent obtained a judgment against defendants after trial before a jury in an action to recover damages for personal injuries. From this judgment defendants appealed to this court, and, after a hearing upon the merits, we reversed the judgment of the lower court on September 8, 1938. (Heroux v. Atchison, Topeka & Santa Fe Railway Co., 28 Cal. App. (2d) 401 [82 Pac. (2d) 620].) No application for a rehearing was filed by respondent with us. However, on October 10, 1938, she filed a petition with the Supreme Court for a hearing, which petition was denied November 7, 1938. November 9, 1938, remittitur issued from this court to the Superior Court.

“This is the sole question necessary for us to determine:

“Will this court issue an order recalling its remittitur when the moving party, fully cognizant thereof from the time of the filing of the opinion of this court, has failed to call the alleged fraud and imposition upon which the motion is based to our attention by way of a petition for rehearing?