Mabb

The parties here are the same as in the case of the same title heretofore decided by this court ( 133 Cal. 556 , 65 Pac. 1085 ), and the appeal is from an order of the lower court, of date January 6, 1902, allowing the defendants to file a memorandum of their costs on appeal.

The case is: The decision of this court, which was for the defendants, was rendered August 7, 1901. The remittitur was issued September 7,1901, and received by the clerk of the lower court September 9th of the same year, but was not filed by the clerk until January 3, 1902. The reason of the clerk’s delay in filing does not appear, but, in support of the correctness of the record and of the regularity of the officer’s proceeding, it will be presumed it was because the fee for filing had not been paid or tendered, or that there was some other sufficient cause (Stats. 1895, p. 269, c. 207; Code Civ. Proc., secs. 1963, subds. 15, 17); for otherwise it would have been the duty of the court, on proper *187 motion, to have ordered the filing to be corrected so as to show the.right date. The order appealed from (after some further proceedings that need not be particularized) was made January 6, 1902, and the…