Lady v. Worthingham

McCOMB, J. This is a motion by appellant for an order recalling the remittitur issued herein on the ground that the decision of this court affirming the judgment of the Superior Court was made (1) inadvertently, and (2) under a mistake as to the facts of the ease.

The undisputed facts are:

On March 8, 1943, we affirmed a judgment of the superior court from which appellant had appealed to this court (Lady v. Worthingham, 57 Cal.App.2d 557 [135 P.2d 205]). An application for a rehearing was not filed hy appellant with us. However, on April 15, 1943, appellant filed a petition in the Supreme Court for a hearing, which petition was denied May 6, 1943. On May 8, 1943, remittitur issued from this court to the superior court.

On June 8, 1943, appellant paid to respondent her costs incurred on appeal and respondent delivered to appellant a satisfaction of judgment for said costs. June 11, 1943, a satisfaction of judgment, executed personally hy appellant, [781]was filed in the superior court. June 24, 1943, The State Bar of California after investigating the facts surrounding the case of Lady v. Worthingham, supra, wrote appellant a letter* stating that a formal proceeding would not be instituted against him by The State Bar.

November 1, 1943, appellant filed with the Supreme Court a document entitled “Further petition of appellant for hearing after decision by the District Court of Appeal, Second Appellate District, Division Two, and after hearing denied by Supreme Court.” This petition was denied by the Supreme Court November 29, 1943.

On November 18, 1943, the present motion was filed with this court.

The affidavit supporting the present motion contained substantially the same facts as those alleged in the petition filed November 1, 1943, with the Supreme Court.

The only facts appearing on the present motion which did not appear in appellant’s original petition for a hearing in the Supreme Court, filed April 15, 1943, are that The State Bar has investigated appellant’s conduct relative to the above entitled case, and has concluded not to institute a formal proceeding against him.

This is the sole question necessary for us to determine.

Was this court’s judgment predicated upon (1) inadvertence or (2) a mistake of fact?