Opinion
Submitted on motion to recall mandate. Opinion on the merits September 14, 1927
Motion denied December 20, 1927
From Clatsop: FRED W. WILSON, Judge.
For the motion, Mr. John W. Kaste and Mr. Nicholas Jaureguy. Contra, Messrs. G.C. A.C. Fulton and Mr. James L. Hope.
In Banc.
MOTION DENIED.
This matter comes on to be heard on the motion of defendant to recall and correct the mandate. The mandate remanded the case for a new trial. Defendant complains because a new trial was ordered. We are not given the benefit of any authority or citations of authorities supporting the motion. We refused to try the question of damages demanded in the counterclaim of the defendant because we thought it could be better tried by a jury. If the court has erred in permitting the complaint to be amended as stated in the affidavit supporting the motion, that error can be corrected upon appeal. That question is not properly raised by the motion. We do not think that the mandate is erroneous. We decline to express an opinion upon the question of the amended complaint which is not before us. The propriety of the amended complaint cannot be determined upon a motion to recall and correct a mandate. For these reasons the motion to recall and correct the mandate is denied.
MOTION DENIED.