Combs v. J. E. Haddock, Ltd.

WOOD, P. J. Three defendants appeal from an order denying their motion to strike from a judgment a provision wherein they were charged with interest on amounts received as rent. The motion was made on the asserted ground that this court in its opinion in Combs v. Haddock, 190 Cal.App.2d 151 [11 Cal.Rptr. 865], had modified the judgment by deleting such provision regarding interest.

[815]The former appeal pertained to two cases, referred to as Mashon v. Haddock and Kettering v. Haddock. The cases had been tried together and separate judgments had been entered.

At the end of the opinion on that appeal, it was stated: “The judgments in these two cases will be modified to delete therefrom all interest due Mr. Mashon and Mr. Kettering in the accounting for the partnership and the joint ventures, except interest and attorney’s fees on the promissory notes. And the judgment in the Mashon case will also be modified to strike therefrom all damages. As so modified, the judgments are affirmed.”

After receiving the remittitur, which was in effect the same as the statement just quoted, the trial judge prepared written instructions to the clerk of the trial court regarding the matter of modifying the judgments in conformity with the remittitur. Those instructions stated in part: “I am not certain whether the intent of the District Court of Appeal was that the Remittitur would be self-executing, requiring you to perform the ministerial duty of modifying the judgments to conform with the decision of the court, or if the Remittitur implies a direction to me to order you to do the specific things required by that decision. ... I feel that, in any event, you should not have to carry the responsibility of applying the decision of the appellate court to the judgments. That application cannot be made in case No. SMC 3237 [Mashon case] without going behind the judgment and looking to and understanding the Findings of Fact and Conclusions of Law. Hence, I give you these instructions, which, I am sure, you will welcome.”

Then it was stated therein that, before sending the instructions to the clerk, the judge would send a copy of the instructions to the division of the District Court of Appeal where the opinion was rendered, and would send copies to counsel for the parties. It was also stated therein that the judge would withhold delivery of the instructions to the clerk for 10 days, within which time anyone concerned might make any suggestion or objection. It was also said therein: “To make this one dictation serve also as a letter to counsel, I am including in parentheses comments which are explanatory to them, not instructions to you. In case No. SMC 3237, you will change the judgment as follows: . . (1) In paragraph 2 on page 2 ... substitute for the figure ‘$143,141.14’ the figure ‘$129,058.09 ’. . . . (2) In paragraph 2 on page 2 . . . substitute for the figure ‘$81,169.63’ immediately before the word ‘interest’