Niles

Upon an opinion that had been prepared in this cause by Mr. Commissioner Temple, the court in Department Two made an order on the 29th of June, 1891, reversing the judgment, and directing the court below to enter a judgment on the findings in favor of the plaintiff. Subsequently thereto, an application was made on behalf of the respondent that the cause be heard in Bank, and on the 29th of July, 1891, an order was made by the court in Bank modifying the judgment that had been rendered by the Department, and directing that the cause be remanded for a new trial. An opinion embodying the reasons for this modification was at the same time prepared, but it was not filed with the clerk, nor was the order entered in his minutes until the next day. (For a report of the case, see 90 Cal. 10 .) The appellant has moved for a remittitur upon the judgment originally pronounced in Department Two, upon the ground that the court in Bank has no jurisdiction to modify the judgment of a Department until after the cause has been heard in Bank upon an order therefor, and also upon the ground that the order modifying the judgment was not entered in the minutes of the clerk until after the expiration of…