Opinion
Appeal from Superior Court, Alameda County; William H. Waste, Judge.
Pillsbury, Madison & Sutro, of San Francisco, for appellants.
Stanley Moore, of San Francisco, and Reed, Nusbaumer & Bingaman, of Oakland, for respondent.
STURTEVANT, Judge pro tem.
This is an action to quiet title. The plaintiff had judgment in the trial court. Pacific Investments, Incorporated (a corporation), one of the defendants, has appealed and has brought up all of the evidence in a bill of exceptions. The evidence of the parties consists of written instruments. No witness was called by either party. Both parties claim to deraign title from Western Fuse & Explosives Company. On December 22, 1904, the plaintiff obtained a judgment against the Western Fuse & Explosives Company and later took out execution and caused the property involved in this action to be sold at execution sale. The plaintiff purchased at the sale, and if his purchase vested in him a legal title the judgment of the trial court should be affirmed. The appellant attacks the execution sale on the ground that at the time the clerk of the trial court issued the writ the jurisdiction of the trial court had been divested by virtue of an appeal duly perfected. Code Civ. Proc. § 946; Ruggles v. Superior Court, 103 Cal. 125, 37 P. 211.
The facts regarding that appeal and pertinent to this appeal are few. They are all admitted. The first appeal was taken regularly and the execution was duly stayed. Later that appeal was disposed of and a remittitur was sent down. The remittitur was dated May 9, 1910. It was filed September 13, 1916, nunc pro tunc, May 11, 1910, pursuant to an order of the trial court made on that date. The record is silent as to when, if at all, the clerk of the trial court did " attach the certificate to the judgment roll, and enter a minute of the judgment of the Supreme Court on the docket against the original entry." The writ of execution was taken out August 1, 1913, and the sale was had September 8, 1913. As the record contains no evidence to the contrary, we must presume that the clerk of the Supreme Court promptly transmitted the remittitur after its issuance; that it was duly received; that the clerk of the trial court duly received it, and thereafter that he did promptly " attach the certificate to the judgment roll, and enter a minute of the judgment of the Supreme Court on the docket, against the original entry." Code Civ. Proc. § 958; sec. 1963, subs. 15, 20, and 24. These matters fill all of the calls of the statute. It will be noted that the statute does not call for a separate filing mark on the remittitur. Code Civ. Proc. § 958. When the provisions of the last-mentioned section have been complied with, it is clear that jurisdiction revests in the trial court. Granger v. Sheriff, 140 Cal. 190, 73 P. 816. There is not, however, any express statement on that subject in our statutes. But there is settled authority to the effect that all jurisdiction of the appellate court is divested on the instant the remittitur goes down. Herrlich v. McDonald, 83 Cal. 505, 23 P. 710; Adams v. Dohrmann, 63 Cal. 417; Granger v. Sheriff, 140 Cal. 190, 73 P. 816. But it needs no citation of authority to the effect that jurisdiction of a pending case rests in some court. In this case the jurisdiction of the Supreme Court and the jurisdiction of the superior court, only, are involved. It being settled by the above authorities that the jurisdiction of the Supreme Court ceased when the remittitur issued, it seems clear that instantly the jurisdiction of the superior court attached. It follows that the attack on the title of the respondent is without merit.
As no other error is alleged, the judgment is affirmed.
We concur: LENNON, P. J.; BEASLY, Judge pro tem.