I concur in the judgment, not only for the reasons stated in the opinion, but upon the further ground that one not a party to an action receiving a letter from another who is a stranger to the suit should not be required to produce it at the trial of such an action, save and except upon clear and unequivocal evidence, and such is not disclosed by the record, showing that it is material to the issues involved. (Kullman etc. Co. v.Superior Court, 15 Cal.App. 276, [114 P. 589].) Moreover, since the witness Silk testified that the only thing said to him by Haggarty was to ask if he was selling goods to McEvilly, and upon receiving an affirmative answer said: "Well, go right on, if you want to; go right ahead," anything which he might have stated to Lezinsky in the letter other than this, could in no event bind Haggarty. Assuming that it was material to show whether or not Silk communicated to Lezinsky the remark so made by Haggarty, such fact could not have been ascertained by interrogating him as to what he did with reference to the matter.
A petition for a rehearing of this cause was denied by the district court of appeal on June 25, 1913, and the following opinion then rendered:
THE COURT. — No order as to costs was made upon the original hearing, nor is such order ordinarily made because of section1022 of the Code of Civil Procedure, which is controlling, and under the provisions of which costs follow to the prevailing party as a matter of course and are included in the remittitur. In the case at bar, however, the defendants in interest are not parties, the court and judge thereof only being *Page 167 before the court, neither of whom has any interest in the controversy (Matter of De Lucca, 146 Cal. 113, [79 P. 853]), and should not be subject to costs in a proceeding of this character, which is but a review of a judicial act. Such omission to award costs is not intended to affect any rights between the real parties in interest should a future controversy arise as to the right to recover on account thereof.
The judgment is modified by adding thereto the following: "Without costs as against the superior court or the judge thereof."
Rehearing denied.