After the opinion herein was filed, the appellant presented a petition for a modification of the judgment therein ordered by limiting the affirmance of the judgment appealed from to that portion which awards to the plaintiffs a recovery of the money originally paid to the clerk, but without any interest thereon; and in support of this petition has called our attention to the cases of Savings etc. Soc. v. San Francisco,131 Cal. 356, [63 P. 665], and Columbia Sav. Bank v. LosAngeles, 137 Cal. 467, [70 P. 308], in which the supreme court has held that in an action against the state or any of its subdivisions to recover moneys paid under protest, the court is not authorized to include in its judgment interest thereon during any of the time that elapsed prior to the entry of the judgment.
At the hearing of the appeal herein the argument on behalf of the appellant was confined to the question of its liability to the respondents, and neither in the oral argument nor in the printed brief on behalf of the appellant was our attention called to the question presented by the above petition, or to the form of the judgment under consideration, and in their reply to the petition the respondents urge that *Page 119 for this reason the petition should not be granted. In support of their position they have cited several cases in which the supreme court has held that the appellant, by his failure to present in his opening brief, or point out in the record, grounds which may exist for the reversal of the judgment, will be deemed to have waived such error and, if presented for the first time in his closing brief, they will not be considered by the court. This, however, is not a right which may be invoked by the respondent, but, as was said in Webber v. Clarke,74 Cal. 11, [15 P. 431]: "The court is at liberty to decide the case upon any points that its proper disposition may require, whether taken by counsel or not."
While a court might hold that, by failing to point out an error involving the decision or investigation of a controverted question of law, an appellant had thereby waived the right to subsequently urge such error, it does not follow that, if it should be brought to the attention of the court before its judgment had become final, that upon the face of the record the judgment appealed from was in contravention of some statute or of a well-established rule of law, it would not be justified in setting its judgment aside, even though the appellant had not pointed out the objection, or its attention had not been called to the matter until after it had filed an opinion for affirming the judgment. Courts are established for the purpose of protecting individuals in the enjoyment of their rights and vindicating them against wrongs; and it should be the aim of an appellate court to prevent the judgments brought before it for review from violating any statute or rule of law defining or establishing those rights. In their answer to said petition the respondents do not controvert the proposition of the appellant that the judgment of the superior court is violative of this rule as defined in the above-named decisions of the supreme court; and we cannot assume that they would desire us to affirm a judgment which they concede to be in contravention of the law. Under these principles the petition must be granted.
The judgment heretofore entered herein is set aside, and instead of that the following judgment will be entered: The superior court is directed to set aside its judgment heretofore rendered, and to enter judgment in favor of the plaintiffs *Page 120 and against the defendant, as of September 16, 1904 — the date of its decision — for the sum of $770, said judgment to bear interest from that date at the rate of seven per cent per annum.
Cooper, J., and Hall, J., concurred.