¶1I am unable to concur in the conclusion of the majority. The fifteen per cent damages were imposed without notice to the appellant, and upon learning the fact, her counsel, before the expiration of the thirty days, came in and moved the court to modify the judgment by striking out the damages which it had added without a hearing. The motion w7as submitted, and I think he had the right to assume that the court w;ould control its remittitur until all matters affecting the judgment had been passed on. But it is said the motion was decided, although no record was made of it. *507This is true, but it was the duty of the court to make a record of its action which would give the party affected by it notice and an opportunity to be heard. If such record liad been made, he could have petitioned for a rehearing before the remittitur issued. When a party thus loses a right which but for the mistake of the court would have been preserved to him, it seems to me we ought to say the remittitur was issued through inadvertence, and should be recalled. The fact that no petition for rehearing was filed within the thirty days does not seem to me to be material. The moving party sought only to have the damages (amounting to over one thousand dollars) stricken out. If the Department had granted the motion which was submitted to it, there would have been no necessity for a rehearing.
¶2Fox, J., concurred with Justice Paterson.