I dissent.
The majority opinion correctly states the rule as announced by the decisions of this court and the District Courts of Appeal with respect to when a remittitur may he recalled, and it is in the application of the rule to the facts of the case at bar that I disagree with the majority. On the other hand, I agree with the views expressed in the opinion prepared by Mr. Presiding Justice White when this case was *631before the District Court of Appeal, Second Appellate District, Division One (* (Cal.App.) 235 P.2d 388).
The line of cleavage between what constitutes mistake or inadvertence and judicial error is somewhat obscure and there would be little value in suggesting supposititious cases which would justfy the application of the rule. There are, however, cases in the reports which seem to me to go farther than we would be required to go in the instant case to sustain the holding of the District Court of Appeal that the remittitur be recalled. In Crum v. Mt. Shasta Power Corp., 220 Cal. 295 [30 P.2d 30], this court was faced with a problem arising out of prior decisions of the District Court of Appeal in the same case. In that case the District Court of Appeal had rendered an opinion reversing the judgment (Crum v. Mt. Shasta Power Corp., 117 Cal.App. 586 [4 P.2d 564]; Albaugh v. Mt. Shasta Power Corp., 117 Cal.App. 612 [4 P.2d 574]) and a petition for hearing was denied by this court. Thereafter a motion to recall the remittitur was made in the District Court of Appeal and denied by opinion (Crum v. Mt. Shasta Power Corp., 124 Cal.App. 90 [12 P.2d 134] ; Albaugh v. Mt. Shasta Power Corp., 124 Cal.App. 779 [12 P.2d 137]), and a petition for hearing was denied by this court. The case was then retried and judgment was again recovered by plaintiff, which judgment was reviewed by this court by its decision reported in 220 Cal. 295 [30 P.2d 30], Because of misstatements of both fact and law contained in the opinions of the District Court of Appeal, this court was confronted with the problem of reconciling irreconcilable conflicts in the law as declared by the District Court of Appeal in that case. This court purported to reconcile these conflicts by a process of reasoning which in effect nullified the holding of the District Court of Appeal on the basic legal theory upon which its decisions were rendered. Although the decisions of the District Court of Appeal had become final and the rules of law therein announced had become the law of the case, this court was compelled to say that it could not accept the rules of law therein announced and decided the case in disregard of those rules.
Likewise, in the case of Greenfield v. Mather, 32 Cal.2d 23 [194 P.2d 1], this court was required to hold that two prior decisions of this court in a companion case (Mather v. Mather, *63222 Cal.2d 713 [140 P.2d 808], 25 Cal.2d 582 [154 P.2d 684]) were erroneously decided because of a misapprehension of the facts, and that even though the judgments in those two prior decisions had become final, they could not be followed by this court and were not res adjudicata.
I do not think it can be said that the mistakes made in both the Crum and Mather eases cannot be classified as judicial error! In the Crum case the District Court of Appeal so garbled and misstated the facts that the rules of law which it applied could not be made applicable to the facts disclosed by the record, and when the case finally got before this court on the second appeal, and the true facts were stated, this court found it impossible to apply the rules of law which had been announced by the District Court of Appeal. There can be no doubt that the misstatement of the facts and the misapplication of the rules of law by the District Court of Appeal in that case amounted to judicial error. While this court had the opportunity to correct such error both on a petition for hearing after decision of the case on its merits, and on petition for hearing after denial of plaintiff’s motion to recall the remittitur, it did not do so. So the responsibility for the judicial error involved in that case was cast upon this court as well as the District Court of Appeal. In the Mather case the error consisted of a misapprehension of the facts by this court. There can be no question but that such misapprehension was due to judicial inadvertence and amounted to judicial error.
I can see no distinction in recalling a remittitur to correct such error or overruling or refusing to follow a prior decision of this court or of a District Court of Appeal in the same case regardless of whether we term the prior adjudication as the law of the case, res adjudicata, or stare decisis. In other words, my theory is that if an appellate court makes a mistake in stating the facts of a case which results in a decision contrary to what should have been reached had the facts been correctly stated, it should have the power, and it is the duty of such court when the true facts are called to its attention, to recall the remittitur and render a decision in accordance with the correct state of facts. I believe this should be the rule regardless of whether the misstatement of fact in the prior decision is due to ignorance, caprice or fraud on the part of the court or the lawyers or litigants involved.
*633Pear that such a rule may have the effect of destroying the finality of judgments and injuriously affecting rights of innocent third persons which may intervene between the erroneous decision and the recall of the remittitur, may be obviated by the recognition of the validity of any rights of innocent third parties which have intervened. Under this rule a court would not be faced with the unhappy dilemma of seeing justice thwarted because of its impotency to correct an error for which it alone is responsible.
I would permit the decision of the District Court of Appeal recalling the remittitur in this case to stand, to the end that it may reconsider and decide the case anew on its own merits.
Appellant’s petition for a rehearing was denied April 17, 1952. Carter, J., was of the opinion that the petition should be granted.
A hearing by the Supreme Court was granted on Nov. 9, 1951.