Heroux

Plaintiff brought this action to recover damages for personal injuries suffered in a collision between an automobile and a locomotive. From a judgment on a verdict the defendants appealed. The judgment was reversed by the District Court of Appeal on September 8, 1938. (Heroux v. Atchison, Topeka & S. F. Ry. Co., 28 Cal. App. (2d) 401 [ 82 Pac. (2d) 620 ].) No application for a rehearing in that court was made. A petition for a hearing in this court was denied November 7, and on November 9, 1938, the remittitur went down from the District Court of Appeal. On December *286 24, 1938, a notice of motion was filed in that court to recall the remittitur. The grounds of the motion were stated to be, (1) that the judgment of reversal was improvidently ordered upon false suggestion and under a mistake as to the facts in the case, and (2) that fraud and imposition had been practiced' upon the court in procuring its judgment and upon counsel representing the respondent.

After hearing on the motion to recall, the District Court of Appeal found that the respondent was fully cognizant of the facts constituting the alleged fraud and mistake on and prior to that date of the judgment of reversal,…