Unwin v. Barstow-San Antonio Oil Co.

WORKS, J.,

pro

tem.

This cause is before us on two appeals by the defendant, one being from, the judgment and the other from an order denying the defendant’s motion to tax the costs in the action.

There is but one point presented on the appeal from the judgment. The first appearance of appellant in the action was by a demurrer to the complaint, filed in its behalf by an attorney at law. In the due course of proce'dure in the action the demurrer was overruled and time was allowed to answer. On a certain day thereafter the appellant served and filed a notice to the effect that its attorney had with

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drawn from the case. The notice was attached to a document signed by the appellant and by its retiring attorney, which stated that it was “stipulated and agreed” between them that the attorney “may, and he does hereby; withdraw from said action as attorney for said defendant therein, and that the said defendant may, and it does hereby, appear in said action in person and without attorney.” In addition to its appearance, thus formally entered by the appellant in person, it did, on the same day serve and file its answer in the action, signed by itself by its resident agent. _ Thereafter the respondent caused the case to be set down for trial. Upon the date set, the appellant having employed new counsel in the interim, it was objected by him that the court had no jurisdiction to proceed with the trial on the ground that respondent had not complied with the provisions of section 286 of the Code of Civil Procedure, which provides, “When an attorney dies, or is removed or suspended, or ceases to act as such, a party to an action, for whom he was acting as attorney, must, before any further proceedings are had against him, be required by the adverse party, by written notice, to appoint another attorney, or to appear in person.”

The court overruled the objection, and it is complained that the ruling was erroneous. The contention cannot be sustained. The only object of the notice contemplated by the statute is to require of a party whose attorney has ceased to act that he appoint a new attorney or appear in the action in person. In this ease the appellant had voluntarily appeared in person on the same day that respondent had notice that the attorney had ceased to act. It would be useless, in any situation, and speaking generally, to require one to do a thing which he had already done. The statute, in this instance, does not require the commission of such an act of folly.