Davis v. Basalt Rock Co.

• Decision Date: 20 November 1952
• Citation: 114 Cal.App.2d 300,250 P.2d 254
• Court: California Court of Appeals Court of Appeals
• Parties: DAVIS et al. v. BASALT ROCK CO., Inc. et al. Civ. 7912. Sac. 6138.

Page 254

250 P.2d 254

114 Cal.App.2d 300

DAVIS et al. v. BASALT ROCK CO., Inc. et al.

Civ. 7912.

Sac. 6138.

District Court of Appeal, Third District, California.

Nov. 20, 1952.

Hearing Denied Jan. 15, 1953.

Gardiner p Riede and Delger Trowbridge, San Rafael, for appellant.

Riggins, Rossi, King & Kongsgaard and King & Ghidella, Napa, for respondent.

VAN DYKE, Justice.

This is a motion to recall remittitur. In an action wherein movants as plaintiffs sought to have declared the respective rights and obligations of the parties to a written contract, a judgment was rendered adverse to their contentions and from that judgment they appealed. The matter of the appeal was referred to this Court and our decision appears in 107 Cal.App.2d 436, 237 P.2d 338. Therein will be found a statement of the case which we will not repeat. We affirmed the decision of the trial court. Movants asked for a rehearing, which was denied. They then applied to the Supreme Court for a hearing. This also was denied. Now the appellants, as moving parties, ask this Court to recall its remittitur.

In the recent case of Southwestern Investment Corporation v. City of Los Angeles, 38 Cal.2d 623, 241 P.2d 985, 986, the principles governing the recall of a remittitur were stated as follows:

'That a remittitur may be recalled on the reviewing court's own motion, on motion or petition after notice supported by affidavits, or on stipulation setting forth the facts which will justify the granting of the order is now determined by Rule. Rule 25(d), Rules on Appeal; 36 Cal.2d at p[age] 22. The question as to when the facts constitute grounds for the granting of the motion is resolved by the case law. Other than for the correction of clerical errors, the recall may be ordered on the ground of fraud, mistake or inadvertence. The recall may not be granted to correct judicial error. * * * In the McGee case [In re McGee, 37 Cal.2d 6, 229 P.2d 780] it was pointed out that a decision is inadvertent if it is the result of oversight, neglect or accident, as distinguished from judicial error. In Chin Ott Wong v. Title Ins. & Trust Co., 91 Cal.App.2d 1, 204 P.2d 387, an order recalling the remittitur was vacated when on analysis it appeared that the purpose of the recall was merely to amend the judgment on appeal.' In Rowland v. Kreyenhagen, 24 Cal. 52, 59, it is stated:

'* * * [A]s a general rule, this Court cannot exercise any jurisdiction over a cause in which the remittitur has been issued by its order and filed in the Court below. The office of the remittitur is to return the proceedings which have been brought up by the appeal to the Court below, and when the remittitur has been duly filed, the proceedings from that time are pending in that Court, and not in this; and, in regard to them, it is not competent for this Court to make any further order.

'But this general rule rests upon the supposition that all the proceedings have been regular, and that no fraud or imposition has been practiced upon the Court or the opposite party; for if it appears that such has been the case, the appellate Court will assert its jurisdiction and recall the case. Against an order or judgment improvidently granted, upon a false suggestion, or under a mistake as to the facts of the case, this Court will afford relief after the adjournment of the term; and will, if necessary, recall a remittitur and stay proceedings in the Court below. This is not done, however, upon the principle of resumption or jurisdiction, but upon the ground that the jurisdiction of the Court cannot be divested by an irregular or improvident order. In contemplation of law, an order obtained upon a false suggestion is not the order of the Court, and may be treated as a nullity.'

The motion here is made 'on the ground that fraud and imposition were practiced upon this Court, and upon the plaintiffs, cross-defendants and appellants in the above entitled matter, and misrepresentations were made to this Court by respondents' attorneys, and that inadvertence, oversight and accident occurred in the decision of this case by this Court, all of which caused this Court to reach an erroneous result, and that the granting of said motion and the reconsideration of said decision of this Court will be in the interests of justice.'

Movants contend that this Court was wrongfully imposed upon through the making by respondents' counsel, in their briefs on appeal, of misstatements of fact concerning the contents of the record. They specifically set forth six of these alleged misstatement of fact. They say, quoting from the brief of respondents, that the following misstatements were therein made: '1. 'Plaintiffs' attorney offered evidence at the trial in aid of the interpretation of the contract.' 2. 'The judgment of the trial court interpreting the contract is harmonious and consistent and that it is supported at all points by the evidence in the case.' 3. 'The trial court interpreted the contract in the light of conflicting evidence. There was not only evidence that supports the court's interpretation, but the overwhelming preponderance of the evidence supports it.' 4. 'These were all questions of fact to be determined by the trial court in interpreting the contract and its decisions on conflicting evidence would be binding, but the overwhelming preponderance of the evidence sustains our statements.' 5. 'We have pointed out the fact that several of the findings are supported by the evidence in discussing the facts.' 6. 'The arguments advanced by appellants presented at most only a conflict in evidence.''

The alleged misstatements are not misstatements of fact. They constitute argument of counsel. Whether such argument would withstand appellate scrutiny, the record considered, is not of moment here. A misstatement of material facts which would justify recall of the remittitur necessarily means a misstatement of facts presented in evidence--not a mere faulty conclusion as to the legal effect of those facts. Statements such as are here alleged to have constituted material misstatements of fact commonly appear in briefs filed and we think are not taken by appellate courts as anything more than argument. They are neither intended, nor fitted, to deceive the reviewing court.

It is not argued that this Court, relying on the alleged misstatements of fact which we have set forth above, 'made no attempt to analyze the evidence to see whether the interpretations of the contract by the trial Court were in any way justified.' We do not doubt that counsel for movants here sincerely feel they are justified in the foregoing charge. They have demonstrated in their briefs on appeal, for rehearing here, and for hearing by the Supreme Court, that they are utterly in disagreement with all of the courts that have acted in the matter. We can only say that at least we made an attempt to analyze the evidence itself, relying not at all upon the argumentative statements quoted from respondents' briefs. We read the entire record having to do with the construction of the subject contract, and many portions of it we reread. Also we considered the contract which was being construed and of course that instrument is the first and highest evidence as to the intent of the parties in executing it. If any defects exist in our appellate consideration of the case, a point which we do not concede, the defects are the result of judicial error and not of any alleged misrepresentations of fact made by counsel.

Having concluded that respondents' counsel made no misstatements of fact and having asserted that this Court in its appellate consideration did not rely upon the argumentative generalizations quoted from their brief, we might, and perhaps should, indulge in no further discussion concerning these assignments of fraudulent conduct on the part of respondents' counsel. But movants state that things said in our written opinion demonstrate that this Court acted under misapprehension as to material facts and circumstances of the cause, and we will discuss these assignments. In this connection movants criticise the following statement in the opinion we filed 107 Cal.App.2d at page 438, 237 P.2d at page 339: 'They [plaintiffs below] sought to introduce, and were by the trial court permitted to introduce, evidence of the facts and circumstances attending the execution of the contract as an aid to its interpretation. We think the contract was sufficiently ambiguous to justify the introduction of such evidence. The result is that this Court upon appeal is bound by the interpretation of the trial court where it is reasonable and is supported by the evidence introduced.' It is argued that the above statement is not correct because 'the contract was not ambiguous, which respondent itself admits on page 71 of its opening brief.' Movants state that the real truth is that their attorney at the trial 'only offered evidence on one point, namely, to determine the meaning of the word 'Pumicite', which the Court interpreted in favor of the plaintiff.' This action was begun, as we have said, to have the respective rights and obligations of the parties to a written contract declared. Movants, as plaintiffs below, pleaded that there existed an actual, substantial and bona fide dispute as to the meaning, interpretation and effect of the contract. Their complaint set forth some 23 separate claims made by them as to their rights and obligations under the subject instrument, and it was asserted these claims were disputed and denied by respondents. As used in the contract the meaning of the word 'pumicite' was resolved by the trial court in a finding reading as follows:

'That contained in said real property is a deposit of an agglomerate of fragmental volcanic debris and pyroclastic material, consisting in large part of fragments of pumice, subordinate portion of fragments of non-pumiceous lavas varying in size from fine sand up to fragments several feet in diameter, and a...