It will be proper to say, in denying the petition for rehearing in this case, that our attention is called by the petition to the decision in Harrier v. Bassford, *Page 663 145 Cal. 529, [78 P. 1038], which it is assumed had escaped our attention. In that case, the judgment on which execution had been issued was not barred by the statute, and this fact was decisive of the case. But the court also considered the question whether — assuming that after five years from the date of the judgment's becoming final, an order could be made, without notice — the act would be unconstitutional; and it was held that it would not be; and in deference to this expression of the court (which was not present to my mind when I was writing the opinion in this case), it will be proper to modify the opinion by striking therefrom what is said as to what would be the constitutionality of the act upon the construction contended for.
The question whether the act was to be construed as authorizing such an order, without notice to the defendant, was not discussed or, apparently, considered in that case; and what is said upon the subject should, I think, be construed as referring to the question then under consideration, and, hence, as qualified by the assumed hypothesis. Nor have we any reason to suppose that what was said was intended to be decisive of the important question involved in the construction of the act. The question is, therefore, I think, to be regarded as an open one, and I can see no reason for altering my opinion that it is, in all such cases, error for the court to order an execution to be issued on an ex parte application; and this, I think, is necessarily implied in the decisions in Wheeler v.Eldred, 121 Cal. 28, [66 Am. St. Rep. 20, 53 P. 431],137 Cal. 38 [69 P. 619]. I am of the opinion, therefore, that the opinion heretofore filed in this case should be amended by striking therefrom the passage commencing "(4) Finally," etc. (to the end of the paragraph), and that the petition for rehearing be denied; and it is so ordered.
Gray, P. J., and Allen, J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on the 17th of March, 1906, and the following opinion was then rendered thereon:
The COURT. — In this cause the district court of appeal of the second district, on January 8, 1906, rendered its judgment, *Page 664 reversing the order appealed from. (Ante, p. 659, [84 P. 466].) Afterward, within thirty days, the respondent made application to the district court for a rehearing of the cause. (Supra.) On February 7, 1906, the district court denied the petition for a rehearing, but modified the opinion rendered on January 8th by striking out certain parts thereof. The original judgment of January 8th was not in any respect changed or affected by the order of February 7th, but remained in full force and effect, as from its date. On March 12, 1906, one of the respondents filed in this court an application for an order transferring the cause t for reconsideration, after judgment of the district court of appeal. This was more than sixty days after the rendition of the judgment by the district court, reversing the order of the court below, and more than thirty days after the cause became final in the district court. The order of the district court made on February 7th was not the final judgment of that court in the cause. It did not purport to make any change in the final judgment, but merely denied the application for rehearing. The modification of the opinion did not affect the judgment previously rendered. Under the provisions of section 4, article VI of the constitution, the judgment of the district court of appeal became final in that court on February 7th, and in this court on March 9, 1906. This court is, therefore, without power, after the lapse of sixty days from the giving of the judgment of the district court, to act upon the present application to transfer the cause. It was presented too late.
The application for transfer is dismissed. *Page 665