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District Court of Appeal, Second District, Division 1, California.

JONES v. EVARTS et al.

Civ. 19170, 19271.

Decided: April 22, 1953

Elon G. Galusha, Los Angeles, for appellants. Clock, Waestman & Clock, Los Angeles, for respondent.

On December 2, 1952, this court affirmed two orders and a judgment adverse to defendants Eugene F. Evarts and Monrova S. Evarts, husband and wife, which arose out of a single action to quiet title and for an accounting. Jones v. Evarts, 114 Cal.App.2d 496, 250 P.2d 671. A petition for rehearing was denied by this court on December 29, 1952, and a petition for hearing was denied by the Supreme Court on January 22, 1953. The remittitur issued on February 2, 1953, and was filed in the superior court.

On April 10, 1953, the aforesaid defendants filed in this court a notice of motion that at the hearing of the regular calendar on May 26, 1953, they would move the court to ‘recall the remittitur’ issued herein and to vacate said order affirming said trial court judgment and to rehear the appeal.'

We have examined the notice of motion, the allegations therein contained, and the argument and authorities in support thereof.

The notice of motion is devoid of any showing that any fraud or imposition was worked upon the court or upon appellants. Neither is there any showing of mistake or inadvertence. In the absence of such a showing, a remittitur may not be recalled to enable the parties to relitigate their cause or the appellate court to redetermine the merits. Southwestern Investment Co. v. City of Los Angeles, 38 Cal.2d 623, 630, 241 P.2d 985.

We perceive no reason for further delay in this matter by continuing the hearing until May 26.

For the foregoing reasons, the motion to recall the remittitur is denied.