Leavitt

Dissenting. I dissent. I entertain no doubt concerning the power of the trial court to enter a judgment nunc pro tunc in so far as it provides for compensatory damages, but it must be remembered that exemplary damages are imposed for the purpose of punishment. In 8 California Jurisprudence, section 106, it is said: “Punitive damages have no compensatory character. They amount only to a punishment or fine which the law says ought to be imposed in certain cases, and which it has been observed, is somewhat in analogy to the action of qui tam, goes to the party who has been injured and has brought the suit.” To the same effect is the definition of this court in the case of Pacific etc. Co. v. Alaska Packers Assn., 138 Cal. 632 [ 72 Pac. 161 ], as follows: “ . . . [P]unitive damages are given as a punishment beyond what a plaintiff has actually suffered. ...” It follows that the court should not have included in the judgment any sum by way of exemplary damages because it was not proper or just to attempt to punish the defendant after his demise.

It is not solely a question of jurisdiction or whether the court had the power to enter a judgment nunc pro tunc, but also a question of…

The opinion prepared by Presiding Justice Conrey, District Court of Appeal, Second Appellate District, Division One, and adopted by that court when the above-entitled cause was before it for hearing and decision, is hereby adopted by this court as its decision in said cause, together with the authorities and observations added thereto by this court. It follows:

“In March, 1927, and for a long time prior thereto, the plaintiffs were the owners of a parcel of real property on Fair Oaks avenue in the city of Pasadena, said property being of the fair and reasonable market value of $42,000. The transaction out of which the controversy herein arose consisted of a conveyance of said Fair Oaks property by the plaintiffs to one Phil D. Rice, the consideration therefor being the sum of $10,000, together with assignment and transfer to plaintiffs of a note of $32,000 made to Rice by one John L. Hittson, secured by a second trust deed on certain property situate in Riverside County, and known in this record as the Granite Hill ranch. Soon after the above-mentioned transaction was closed, the property was sold to defendant Frederick M. Kincaid, by the trustee of the first trust deed, to pay…