Electric Utilities Co. v. Smallpage

California Court of Appeal Mar 31, 1934 No. Docket No. 5081.Published

Before: Thompson

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Holding. The court dismissed the appeal because the appellant failed to file valid points and authorities, as the appellant improperly attempted to file them in propria persona while still represented by an attorney of record. Additionally, the court held the underlying action lacked merit because the plaintiff's trustee in bankruptcy held the exclusive right to maintain the suit.

Issues

Whether an appellant represented by an attorney of record may file points and authorities in propria persona.
Whether a bankrupt plaintiff retains the legal authority to maintain an action after a trustee in bankruptcy has been appointed.

Disposition. dismissed

Quotations verified verbatim against the opinion

“While a litigant has a duly employed attorney of record, that attorney retains the exclusive right to appear and control the court proceedings upon trial or on appeal of the case.”

“the plaintiff in this case was without authority to file points and authorities in his proper person, since he had an attorney of record”

“the appeal is without substantial merit, for the reason that the plaintiff has been declared a bankrupt, and that the trustee of his bankrupt estate has the exclusive right to maintain the action in his behalf.”

THOMPSON, J.

The defendants have moved to dismiss the appeal which was taken from a judgment rendered and entered against the plaintiff for failure to° amend his

[641]

third amended complaint within the time allowed after a demurrer thereto had been sustained. The motion to dismiss the appeal is made pursuant to rule V of the Rules for the Supreme Court and District Courts of Appeal, for failure on the part of the appellant to file his points and authorities as required, and on the further ground that the appeal was taken merely for delay and presents questions only of unsubstantial merit.

It appears from the complaint that Charles A. Menne was doing business under the fictitious name of Electric Utilities Company. The third amended complaint was filed in the name of Electric Utilities Company. It also appears from the complaint that the plaintiff had been declared a bankrupt prior to the commencement of this action, and that a trustee of his estate had been appointed and qualified. To this third amended complaint the defendants filed a demurrer under the provisions of section 430 of the Code of Civil Procedure, upon the ground, among numerous other grounds which were stated, that there is a defect of party plaintiff, since it appears the plaintiff is a bankrupt, and that the legal authority to maintain the action in his behalf is vested solely in his trustee in bankruptcy. April 24, 1933, this demurrer was sustained and the plaintiff was granted ten days in which to amend his pleading. The plaintiff failed and neglected to amend his complaint within the time allowed, or at all. After due notice, and upon hearing, judgment of dismissal of the action was rendered against the plaintiff because of his default. From this judgment the plaintiff appealed.

The plaintiff’s attorneys of record, as appears from the third amended complaint, were B. M. Bainbridge and A. IT. Carpenter. Since filing the complaint above mentioned, Mr. Carpenter died. Mr. Bainbridge still appears to be a surviving attorney of record in behalf of the plaintiff. The transcript on appeal was filed January 9, 1934. On February 8, 1934, appellant’s purported points and' authorities were signed only by Charles A. Menne,

“In Pro. Per.”,

Electric Utilities Co. v. Smallpage

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THOMPSON, J.

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