Hogs Back Consolidated Mining Co. v. New Basil Consolidated Gravel Mining Co.

Citations

• 65 Cal. 22
• 2 P. 489
• 1884 Cal. LEXIS 425

Syllabus

<p>Practice—Remittitur—Default—Inadvertence of Clerks. — On the 8th day of February, 1883, this court, upon a former appeal, reversed the judgment upon the ground of defective service of an amended complaint. On the 13th of February the appellant moved that the judgment be modified so as to give it leave to answer. On February 23d an order was made modifying the judgment as requested, and giving appellant leave to answer within twenty days after the filing of the remittitur in the court below. On March 12th the cleric issued a remittitur which was filed on March 14th in the lower court. By .inadvertence of the cleric the issuing of the remittitur was not noted upon the record, Upon inquiry by the counsel for the appellant, he was informed by the clerk: that no remittitur had been issued or would issue until the expiration of thirty days from February 23d. An answer was filed on April 3d. On April 10th the Superior Court on motion of the respondent caused the default of the appellant to be entered, and gave judgment against him. Held, (1) that a remittitur should not have been issued until the expiration of thirty days after the modifying order, and that the judgment by default for failure to answer within twenty days after the filing of the remittitur prematurely issued should be set aside on motion. (2) That the default should have been set aside when it appeared that it was occasioned by the inadvertence of the clerk of this court in failing to make an entry of the issuance of a remittitur, and in misleading the appellant by his statements.</p>