People v. Bouchard

GIBSON, C. J.

The People have appealed from an order granting a motion to set aside an information charging defendant with possession of a dangerous weapon, and Gladys Towles Root, the attorney who represented defendant in the trial court, seeks to quash service upon her of the appellant’s opening brief.

When Mrs. Root was informed by the county clerk that a copy of the transcript was being sent to her, she wrote to the district attorney and to the clerks of the superior court and the District Court of Appeal stating that she was not the defendant’s attorney on appeal and that all correspondence with respect to the appeal should be with defendant, whose address she did not know. Subsequently, appellant’s opening brief was served on Mrs. Root, and she then appeared specially before the District Court of Appeal and moved to quash such service. In support of her motion, she filed an affidavit in which she states that she has not heard from defendant since the granting of the motion to set aside the information, that no arrangements for representation with or without fee have been made with him, and that she believes that she has no authority or right to represent him. The District Court of Appeal granted the motion, and this court granted a hearing.

It clearly appears that Mrs. Root was attorney of record for defendant in the trial court, and her claim, as indicated by her affidavit, is that her authority to act ceased when the superior court granted the motion to set aside the information.

[440]

It has been held that the presumption that an attorney of record has authority to appeal will prevail unless the appellant himself objects or there is a clear showing of lack of authority.

(United States of Mexico

v.

Rask,

109 Cal.App. 497, 500-502 [293 P. 108]; see

Parkside Realty Co.

v.

MacDonald,

167 Cal. 342, 346 [139 P. 805];