In re Estate of Levinson

Appeal by certain legatees named in the will of John Levinson, deceased, from an order settling the account of J. W. Goodwin, administrator with the will annexed of the estate of said deceased. The administrator was charged with misconduct in the discharge of his trust, and was cited to show cause why his letters should not be revoked; thereupon, on February 14, 1893, he filed the account in question, and tendered his resignation of his office of administrator. The order appealed from declared the charges against respondent to be without foundation, allowed his account as presented—with the exception of'a single item —and directed that upon the production of a receipt for the balance of funds of the estate in his hands, ascertained to be the sum of $4,729.94, from one Ira P. Rankin, who was appointed special administrator to succeed him, the respondent be discharged from further liability.

3. The legatees filed their exceptions to the account March 3, 1893; a hearing was had upon the objections thus made, and on September 12, 1893, the court orally announced its decision, stating the terms of the order to be drawn allowing the account; such order was signed by the judge and filed…

Motion to recall the remittitur herein for the purpose of securing a modifical of the direction made therein for the payment of the costs of the appeal.

Without reference to the merits of the motion, it comes too late. The remittitur was regularly issued on September 6, 1895, and this motion was not noticed until October 18th following. If respondent desired a modification of the judgment in any respect, the proper application should have been made before the going down of. the remittitur. (Gray v. Palmer, 11 Cal. 341 .) When the remittitur has been duly and regularly issued, without inadvertence, we have no power to recall it. This court thereupon loses jurisdiction of the cause, except in a case of mistake, or of fraud or imposition practiced upon the court, neither of which elements appear in this case. (People v. Sprague, 57 Cal. 147 ; Rowland v. Kreyenhagen, 24 Cal. 52 .)

Motion denied.