City of Oakland v. Pacific Coast Lumber & Mill Co.

This was an action in eminent domain. The jury’s award of damages was not acceptable to defendant, which appealed from the judgment of the superior court, and the order denying its motion for a new trial. On December 6, 1915, the judgment and order were affirmed by this court. The judgment by this court gave no direction as to costs. In the remittitur issued by the clerk of this court on January 6, 1916, there was inserted, as is done where there is no reversal or modification by this court of the judgment or order appealed from, and there is no direction by this court to the contrary, the words “respondent to recover costs of appeal.” We have here a motion for an order recalling this remittitur, striking therefrom the words “respondent to recover costs of appeal, ’ ’ and inserting in lieu thereof a direction that the appellant have and recover its costs on appeal. The ground of the motion is substantially that the provision as to costs, inserted by the clerk without any special express direction by the court, is in violation of the constitution of the state, particularly of section 14 of article I thereof, and in contravention of the laws of the state of California. This claim is…