Wilson v. Barry

PEEK, J.

This is an appeal from an order granting respondents’ motion to withdraw appearances made in their behalf in an action instituted by appellants.

The complaint, which was filed on August 20, 1948, named as defendants, Robert R. Barry, Wilford Carey, as administrator of the estate of W. Gibson Carey, Jr., Fred Dunning, Coleman Burke, Plumas Land Company, a corporation, Plumas Mining Company, a corporation, Plumas Lumber Company, a corporation, California Trust Company, a corporation, as trustee, and numerous John Does. No summons was issued and apparently no attempt was made to serve any of the above named defendants. On April 30, 1949, Attorney Frank H. McAuliffe filed a demurrer to the complaint and a motion for summary judgment purportedly on behalf of all of the defendants. The motion for summary judgment was supported solely by the affidavit of Robert R. Barry, who was designated as “one of the defendants above named, and the President of defendant corporations Plumas Land Company, Plumas Mining Company, and a stockholder of Plumas Lumber Company. ’ ’ Approximately four months later McAuliffe filed a demurrer to the amended complaint, likewise on behalf of all of the defendants. On October 5, 1949, McAuliffe noticed a motion to withdraw the appearances of Robert R. Barry, Wilford Carey, as administrator of the estate of W. Gibson Carey, Jr., Fred Dunning, Coleman Burke, and California Trust Company. Two affidavits accompanied the motion. (1) That of Eleanor Carey stated

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that she is one of the executors of the estate of W. G. Carey, Jr., having been appointed by the probate court in the State of Connecticut; that neither of the regularly appointed executors of said estate has ever applied for ancillary proceedings in California; that Wilford Carey “is a person entirely unknown” to her; that no authorization has ever been given McAuliffe to appear on behalf of the said estate or its representatives. (2) That of Frank H. McAuliffe stated that he “assumed” from a conversation with Barry that it was the desire of all of the defendants to appear in the action; that he-prepared papers for filing without discussing the legal result thereof with Barry, the only defendant with whom he had any discussion prior to making an appearance; that he subsequently learned it was the intention of Barry that affiant appear only on behalf of the Plumas Land Company, the Plumas Mining Company, and the Plumas Lumber Company, and that Barry was not authorized to effect the appearance of other defendants and he did not intend to authorize affiant to appear for such other defendants.