TEXAS CO v. MOYNIER ET AL

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District Court of Appeal, Second District, Division 2, California.

TEXAS CO. v. MOYNIER ET AL.

Civ. 9408.

Decided: February 26, 1934

J. Wiseman Macdonald, of Los Angeles, for appellants. Charles C. Stanley, R. K. Barrows, and J. A. Tucker, all of Los Angeles, for respondent.

This appeal is from a judgment entered pursuant to a remittitur of this court on the previous appeal in the cause, reported in 129 Cal. App. 738, 19 P. (2d) 280. The remittitur there directed “that the judgment of the superior court in and for the county of Los Angeles in the above–entitled cause be and the same is hereby reversed with directions to the trial court to render judgment as prayed for in the complaint.” The complaint prayed for judgment for money paid for taxes assessed to plaintiff on certain property leased to defendants. The trial court rendered judgment for defendants, which was reversed, as above shown.

Upon this appeal both parties agree that the judgment appealed from was entered pursuant to the remittitur above quoted.

As was said by our Supreme Court in Keller v. Lewis, 56 Cal. 466, in a similar situation, the trial court had no discretion. It could not do otherwise than as directed by the remittitur.

Appellant asserts that our opinion on the former appeal was based upon a phase of the case not theretofore discussed and that he has not had his day in court on that issue. After petition for rehearing in this court and after petition for hearing in the Supreme Court, both of which were denied, it is now too late to raise this question.

The judgment is affirmed.

CRAIG, Justice.

We concur: STEPHENS, P. J.; ARCHBALD, Justice pro tem.