Toland & Andrews v. County of Ventura

[413]

McFARLAND, J.

The plaintiffs are attorneys at law, and brought this action to recover of defendant five hundred dollars, the valué of their legal services rendered in the prosecution of a criminal action, pending in the superior court of Ventura County, entitled People

v.

Hill, in which the defendant therein was charged with murder. Judgment went for plaintiffs for the amount claimed, and defendant appeals.

The material facts in the case are these: The said case of People

v.

Hill was first tried in 1898, and defendant therein was convicted; but, on appeal to this court, the judgment was reversed and a new trial ordered. The gentleman who was attorney for the defendant was afterwards elected district attorney of Ventura County, and entered upon the duties of that office on January 1, 1899, and was therefore afterwards disqualified to prosecute said action against his client. About April 16, 1899, the attorney-general of the state, under the provisions of section 472 of the Political Code, employed the respondents herein and another attorney, Orestes Orr, Esq., to prosecute said action. They were substituted as attorneys for the people, and conducted a second trial, which resulted in a disagreement of the jury and their discharge on June 8, 1899. For these services at the second trial respondents and Orr were paid in full by the state of California. On the 21st of August, 1899, the superior court made an order setting the case for a third trial on the 5th of September, 1899; and at the same time—August 21, 1899—made also the following order: “F. W. Ewing, the present district attorney, having heretofore in the trial of this cause acted as the attorney for the defendant, and being therefore disqualified, it is hereby ordered that Toland

&

Andrews, practicing lawyers at this bar, be and they hereby are appointed to represent the state in all further proceedings herein.” Under the latter order respondents took part in the prosecution of the case at the third trial; and for the services thus rendered this action was brought— the supervisors of the county having refused to allow respondents’ demand, or any part thereof. There is no dispute as to the value of the services. On the same day on which the respondents were appointed as aforesaid—August 21, 1899—the attorney-general again employed Mr. Orr to prosecute the case, and Orr did so in conjunction with the respondents. As the findings refer in a general way to the averments of the