Trumpler v. Trumpler

Citations

• 123 Cal. 248
• 55 P. 1008
• 1899 Cal. LEXIS 1052

Syllabus

<p>appeal—Jurisdiction—Recall of Remittitur—Fraud—Void Order.— The general rule that the supreme court cannot exercise jurisdiction over a case in which the remittitur has been issued by its order and filed in the court below, rests upon the supposition that all of the proceedings have been regular, and that no fraud or imposition has been practiced upon the court or the opposite party. If such fraud or imposition has been practiced, the court will assert its jurisdiction, and recall the remittitur, upon the ground that the jurisdiction of the court cannot be divested by an irregular or improvident order, and that an order obtained upon a false suggestion is not the order of the court, and may be treated as a nullity.</p> <p>Id.— Appeal in Partition Suit — Transfer of Rights—New Trial Order—Confession of Error—Fraud in Procuring Reversal.— Where it clearly appears that the nominal parties to a friendly action for partition had ceased to have any further interest in the land, and had transferred their interest to a purchaser thereof-and that, long after such transfer, the plaintiff in the action made a motion for new trial, which was denied, and obtained, by deception, a confession of error from the defendants’ counsel, which they imposed upon this court, and thereby procured a reversal of the order denying the new trial, and the issuance and filing of a remittitur in the superior court upon such reversal, thereby injuriously affecting the rights of the purchaser of the land, who was given no notice, and had no knowledge of the proceedings, held that this court would, upon his motion, and upon affidavits disclosing the facts, recall the remittitur, and continue to exercise jurisdiction over the appeal.</p> <p>Id.—Rights of Purchaser as Moving Party—Legal Representative.— A purchaser of all the property involved in an action of partition is the legal representative of all the nominal parties to the action, within the meaning gf section 473 of the Code of Civil Procedu