Estate of Burnett

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[Civ. No. 1379. Fourth Appellate District. July 10, 1935.]

In the Matter of the Estate of W. I. BURNETT, Deceased.


Robert B. Gaylord and W. R. Bailey for Appellant.

Russell & Heid for Respondents.


Marks, J.

This is a motion to recall a remittitur and to order a corrected remittitur to be issued nunc pro tunc.

[1] On April 11, 1935, this court filed its decision in the matter of the Estate of W. I. Burnett, Deceased, and reversed a decree of distribution without making any provision for the payment of costs. (Estate of Burnett, 6 Cal. App. 2d 116 [44 PaCal.2d 435].) On June 11, 1935, a remittitur was issued in which the following erroneously appeared: "Appellant to recover costs on appeal." (Sec. 1232, Probate Code.)

In Estate of Erickson, 4 Cal. App. 2d 602 [41 PaCal.2d 939], where a similar question was before the court, a similar motion was granted. (See Estate of Johnson, 200 Cal. 307 [252 P. 1052].)

It is ordered that the remittitur issued by the clerk of this court on June 11, 1935, in the matter of the Estate of W. I. Burnett, Deceased, be recalled and that a corrected remittitur be issued in its place, nunc pro tunc, omitting the words, "Appellant to recover costs on appeal."

Barnard, P. J., and Jennings, J., concurred.

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