BRISACHER v. Ben F. White, Special Administrator.

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District Court of Appeal, Fourth District, California.

ESTATE of Leo BRISACHER, Deceased. William BRISACHER, Contestor and Appellant, v. Ethel BRISACHER, Petitioner and Respondent. Ben F. White, Special Administrator.

Civ. 5986.

Decided: November 17, 1959

Irmas & Rutter and Elizabeth M. Horowitz, Beverly Hills, for appellant. Thompson & Colegate and F. Gillar Boyd, Jr., Palm Springs, for respondent.

This is a petition by appellant to recall the remittitur previously issued in this cause for the purpose of awarding costs on appeal to appellant.

The record shows that the appeal herein was from orders of the Superior Court of Riverside County granting a petition for family allowance. In the opinion of this court, filed July 28, 1959, 342 P.2d 384, the orders aranting a family allowance were modified by adding to each of said orders that said allowance be paid only to the extent of the community property being administered in said estate. Since the extent of the community property was not determined by the trial court and apparently there was very little, if any, community property, appellant was the prevailing party on the appeal and he is entitled to his costs on appeal under Rule 26(a), Rules on Appeal. The opinion filed herein contains no provisions as to costs.

On September 28, 1959, remittitur was issued herein providing that ‘Respondent to recover costs on appeal’. This provision as to costs was made inadvertently and by mistake and, under the circumstances shown by the record, it should be stricken therefrom. In re McGee, 37 Cal.2d 6, 9, 229 P.2d 780.

The petition and motion to recall the remittitur is therefore granted and it is ordered that the words ‘Respondent to recover costs on appeal’ be stricken therefrom and that the words ‘Appellant to recover costs', as provided in Rule 26(a), be substituted and that as so amended the remittitur be issued.