Emerson v. Superior Court

29 Cal.App.2d 539 (1938) JEANETTE P. EMERSON, Petitioner,

v.

THE SUPERIOR COURT OF LOS ANGELES COUNTY et al., Respondents.

Civ. No. 11902. California Court of Appeals. Second Appellate Dictrict, Division Two.

December 3, 1938. Marion P. Betty for Petitioner.

J. H. O'Connor, County Counsel, S. V. O. Prichard, Assistant County Counsel, and Ned Marr, Deputy County Counsel, for Respondents.

McComb, J.

This is a proceeding in mandamus to compel respondent court to make an order permitting petitioner to prosecute an action filed by her and now pending in said court without the prepayment of jury fees.

The essential facts are:

Petitioner filed an action in respondent court to recover damages for personal injuries received by her. She thereafter made application to said court for an order permitting her to prosecute her action before a jury without the prepayment of jury fees. This order was denied by the trial judge on the sole and only ground that petitioner's attorney of record had an interest in any settlement or judgment which might be recovered in said action.

At the hearing before this court respondent Presiding Judge Schmidt gave the following testimony relative to a conversation which he had with petitioner's attorney when the latter applied for the order above mentioned:

"Q. At that time what questions were asked and what were the answers given you by Mr. Betty in relation to the Alexander matter? [541]"

"A. To the best of my recollection now I asked Mr. Betty this question: What interest have you in the outcome of this litigation? He said, I have no contract with my client. I said, what do you expect to get out of it if anything when the case is over? He responded, I expect to receive a reasonable fee in the case if I am successful in obtaining a judgment or words to that effect. That's the best of my recollection now. That may not be the exact words used but that's my best recollection of the conversation we had."