Estate of Burnett

Full title: In the Matter of the Estate of W.I. BURNETT, Deceased

Court: Court of Appeal of California, Fourth District

Date published: Jul 10, 1935

8 Cal.App.2d 363 (Cal. Ct. App. 1935)

47 P.2d 745

Opinion

Docket No. 1379.

July 10, 1935.

MOTION to recall and correct a remittitur. Granted.

The facts are stated in the opinion of the court.

Robert B. Gaylord and W.R. Bailey for Appellant.

Russell Heid for Respondents.

MARKS, J.

This is a motion to recall a remittitur and to order a corrected remittitur to be issued nunc pro tunc. [1] On April 11, 1935, this court filed its decision in the matter of the Estate of W.I. Burnett, Deceased, and reversed a decree of distribution without making any provision for the payment of costs. ( Estate of Burnett, 6 Cal.App. (2d) 116 [ 44 P.2d 435].) On June 11, 1935, a remittitur was issued in which the following erroneously appeared: "Appellant to recover costs on appeal." (Sec. 1232, Probate Code.)

In Estate of Erickson, 4 Cal.App. (2d) 602 [ 41 P.2d 939], where a similar question was before the court, a similar motion was granted. (See Estate of Johnson, 200 Cal. 307 [ 252 P. 1052].)

It is ordered that the remittitur issued by the clerk of this court on June 11, 1935, in the matter of the Estate of W.I. Burnett, Deceased, be recalled and that a corrected remittitur be issued in its place, nunc pro tunc, omitting the words, "Appellant to recover costs on appeal."

Barnard, P.J., and Jennings, J., concurred.