Oppenheimer v. Deutchman

THE COURT. On July 30, 1953, this court in Oppenheimer v. Deutchman, 119 Cal.App.2d 450 [259 P.2d 457], affirmed a judgment of the Superior Court of Los Angeles County based upon the verdict of a jury finding that plaintiff, John G. Oppenheimer, was not entitled to damages for an alleged assault. As stated by the court in that opinion, “plaintiff was the only witness who testified concerning the alleged wrongful acts of defendant Julius Deutchman,” alleged to have been committed when plaintiff attempted to serve papers on the defendant. Prior to trial both plaintiff and defendant appeared at the city attorney’s office, at which time plaintiff stated that Julius Deutchman was not the man who assaulted him. At the trial plaintiff admitted making such a statement. There was also evidence that the defendant was ill and not at his office at the time in question. After hearing plaintiff’s uncorroborated testimony and evidence tending to discredit such testimony, the jury concluded that plaintiff was not entitled to damages.

In affirming the judgment, this court said, at pages 454, 455: “We have examined the entire transcript of the proceedings because plaintiff has appeared in propria persona and his argument, both written and oral, in large part is confused and disconnected. The trial judge exercised courtesy toward the parties and was careful to limit the matters heard by the jury to those which were legally permissible and were not prejudicial. The case was a difficult one to try but no error occurred which can be said to have adversely affected plaintiff.” (119 Cal.App.2d 450.)

Appellant’s present motion to vacate the opinion and judgment herein, filed April 24, 1958, and to recall the remittitur, is made on the grounds of “mistake, improvidence, inadvertence and oversight by the court and by the parties to this action, not the result of legal or judicial error, or error of judgment,” and lack of jurisdiction “to review the cause or to hear the appeal, in the first place.” More specifically, the movant’s complaint is that “there was no appealable or any judgment in the record or entered in the action, which [503]would give rise to an appeal or invoke the appellate or any jurisdiction of this court; respondent did not call that to the attention of this court at any time, as he might well have done and should have done, unless he was unaware of it, himself.” Appellant terms the judgment and opinion of this court, reported in 119 Cal.App.2d 450, dated July 30, 1953, as “abortive, vain, purely academic, futile,” etc.