In re Philbrook

After the decision made in this case on the 5th of January, 1895 ( 105 Cal. 471 ), the respondent filed a petition to vacate the decision and judgment and for a rehearing. Upon this an elaborate argument was made, and the petition was denied. It is insisted that respondent has still pending and undisposed of a- motion for a new trial.

Ho notice of a motion for a new trial was given, other than in the petition referred to, in which it is said: “ So far. as this is a motion for a new trial it is submitted upon the minutes of the court.”

Respondent cites two cases, decided under the former constitution of this state,, in which it was held that the proper course to obtain a reconsideration of an original proceeding in this court is to move for a new trial. (People v. Coon, 25 Cal. 635 ; People v. Holloway, 41 Cal. 409 .) Also Nevada Bank v. Steinmitz, 65 Cal. 219 , which decision was made after the present constitution took effect.

But since those cases the question has been fully considered here, and the conclusion reached that a motion for a new trial is not the proper remedy in such a case. (In re Tyler, 71 Cal. 374 ; Grangers’ Bank v. Superior Court, 101 Cal. 198 .)

In the…