In 1889 this court handed down a decision in the above-entitled case, which will be found reported in 81 Cal. 357 , [22 Pac. 679J. In its opinion this court made reference to, and repeated the substance of, certain findings of the trial court, which findings reflected upon the fair dealing of Frank B. Ogden, petitioner herein. The gist of these findings was that the said Ogden improperly and in fraud of the- rights of James Kennedy and others, defendants, represented at an execution sale of certain mining claims of the Oro Pino Mining Company, that the Oro Pino Mining Company was not the owner of the property, and, after the sale, wrote his name in the constable’s certificate of sale under execution. In the answer of Kennedy and others in the above-entitled suit no charge of fraud was made against Ogden, and there was no intimation that he was to be charged with fraud. Nothing in the answer tended to give notice that any such fraud was claimed. At the trial of the cause Ogden was called, testified, and went his way. Upon his examination neither his integrity nor the fairness of his acts was called in question. He never was informed during or after the trial of the cause that his testimony had been disputed, or his fair dealing questioned. He had no interest in the litigation, and the first knowledge that he acquired that the findings of the trial court in any way reflected upon him was from reading the reported decision of this court. Immediately upon becoming aware of this decision, the said Ogden himself presented the matter to the bar association of Alameda County, of which he was a member, with a request that an immediate investigation of his conduct be had. Such investigation was had and resulted in Ms complete exoneration, and the bar association of Alameda County addressed a letter, early in the year 1890, to the justices of tMs court, declaring that, after examination, the said Ogden, who at that time had become a judge in the county, was about to request a hearing before this court of the matters touching his integrity, and asked that such hearing be granted him. The judges of the superior court of Alameda County, expressing from their own knowledge the highest opinion of the character of Judge Ogden, united with the bar association in this request. The request which was urged upon this court personally by Judge Ogden, and also by a committee of the bar association of Alameda County, appointed for that purpose, was to the effect that this court should in some appropriate manner investigate the matter of the alleged fraud of Ogden, and report its conclusions thereon in some suitable way by footnote or appendix to the case of Pekin Mining and Milling Co. v. Kennedy, already reported. The justices of this court, each and all expressing willingness to do anything to sub- serve the ends of justice, pointed out the impossibility of adding such footnote to the -volume because it was already in print, and suggested, moreover, that as the judgment of this court in the case had been a judgment ordering a new trial it would be possible for Judge Ogden, upon such new trial, to have the facts thoroughly investigated, and a finding in accordance with those facts declared by the trial court. Judge Ogden then immediately communicated with Marcus P. Bennett, Esq., who had been the attorney for the.plaintiif in the litigation, urging him to press the case for retrial, and offering to bear all the cost and expenses attending such trial, for the sole purpose, so far as he was concerned, of presenting to the court all of the evidence upon the question of his alleged fraudulent practice. Judge Bennett replied that a new trial was impracticable, as the hostile interests had been consolidated and the case had passed from his management and control, concluding his letter by offering his assistance to do whatever he could “to remove the blot from your good name, which I believe has been most unjustly attached to it.”

Judge Ogden then requested Judge Bennett to confer with Judge Williams, who was the trial judge, and learn from him whether he would not be willing to take evidence and report upon this single matter, it being urged that he could do so without impairment of any of the rights under the decision, since his judgment had been reversed by the supreme court, and his finding of the fraudulent practice of Ogden was not within the issues of the case and in no way necessary to sustain the judgment. Judge Williams, in turn, could not see his way clear to try any portion of the case by piecemeal and declined to do so. Appeal was also made to George G. Blanchard, Esq., who had been the attorney for the defendants in the case, asking his aid that the matter might be thoroughly investigated and.cleared up, and Mr. Blanchard wrote that he “exonerated Mr. Ogden from all imputation or wrong in the matter you refer to. ... I am ready to do anything in my power to relieve Mr. Ogden in the matter you speak of. Judge Williams has gone out of office and of course can make no order in the case. Say to Mr. Ogden to prepare such a paper as will meet the facts of the case and it shall be done with as he may suggest.”

Being thus unable to obtain relief from any quarter, Judge Ogden was constrained to give over his attempts, and in this situation the matter rested until 1893. In that year Judge Ogden’s name was under consideration by Governor Markham for appointment to the position of judge of the superior court of Alameda County. Confronted by the case in the eighty-first volume of our reports, his Excellency appointed a commission, composed of the three judges of the superior court of Alameda County, to take evidence on the matter and report their findings to him. Such evidence was taken, and the following report and findings were made:—

“The transaction which bears most heavily against the said Ogden is found in the decision of the supreme court, expressed in this language:

“Upon these matters we make the following findings :—

The foregoing findings from the record before us are abundantly substantiated. But notwithstanding this and the fact that the citizens of Alameda County have repeatedly expressed their conviction of Judge Ogden’s integrity, by continuously and uninterruptedly electing him to the office of judge of the superior court, still the record of the case in the eighty-first volume of our reports stands, and unless corrected, will stand against him, his children, and his children’s children, as a monument of infamy. For this reason, and upon this showing, he asks this court to afford him relief.

The statements in volume 81 of the California Reports were based, of course, exclusively upon the findings made by the trial court. They were in no sense the result of an examination by this court, nor could they in any sense be construed as expressing the views of this court upon the matter. It is manifest that the exonerating of Judge Ogden upon the showing thus made is full and complete. This court also, from personal knowledge of Judge Ogden, joins in the expression of confidence embodied in the findings of the judges of the superior court of Alameda County. _ But, from the character and limits of the jurisdiction of this court, it is impossible for it to attempt to amend or correct the findings of the tidal court, and so, impossible for it to afford Judge Ogden this specific form of relief. However, the publication of the foregoing should suffice for his complete exoneration.

McFarland, J.

Henshaw, J.

Shaw, J.

Angellotti, J.

Lorxgan, J.

Sloss, J.

Beatty, C. J.