Gill v. Southern Pacific Co.

SHAW, J.

In the year 1909, the plaintiff began an action against the defendant to recover damages alleged to have been sustained by plaintiff because of the negligence of the defendant. An amended complaint was filed, to which a demurrer was interposed and the cause was pending awaiting action upon the demurrer. Paul C. Dormitzer was the attorney for the plaintiff and M. R. Jones was the attorney for the defendant. On September 1, 1911, on motion of the plaintiff, the superior, court made an order substituting L. F. Tormey as attorney for the plaintiff instead of said Dormitzer. Notice of this substitution was duly served upon Jones. Thereafter Tormey and the plaintiff effected a settlement of the case with an agent of the defendant whereby the plaintiff agreed to accept five hundred dollars in full settlement thereof. The money was paid and a releáse executed. In pursuance of this settlement, on January 18, 1912, by an order directed to the clerk and filed in the action the plaintiff dismissed the action.

In March following the plaintiff filed and served a so-called “motion” for relief as follows: First, to vacate the order of substitution of the attorneys aforesaid; second, to vacate and set aside the compromise and settlement above mentioned;

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third, to vacate and set aside the said dismissal of the action; and, fourth, for judgment in favor of the plaintiff upon the pleadings for the amount prayed for in the complaint. Afterward the matter was brought on for hearing, and thereupon the court made its order denying respectively the application to set aside the substitution, the application to set aside the settlement and compromise, the application to vacate the dismissal and the motion for judgment on the pleadings. The plaintiff has appealed from the order denying the application to set aside the dismissal, and denying the application to set aside the settlement and compromise. The notice of appeal does not specify any other part of the order, but there is added, to the specifications aforesaid the statement .that, “said plaintiff appeals from each and every part of said order and ruling as well as from the whole thereof.”

It is extremely doubtful if this notice can be considered as a sufficient notice of appeal from the order refusing to vacate the substitution proceedings. The plaintiff himself, in his proposed bill of exceptions, which was settled by the court, recites that he has filed his notice of appeal from the order denying the motion to set aside the dismissal and from the order denying the motion to set aside the settlement. Admitting, however, that it may be considered as an appeal from the first order mentioned, the record does not show that the order was erroneous, so far as the plaintiff is concerned. The bill of exceptions does not purport to contain all or any of the evidence introduced on the hearing of the motion to substitute attorneys. The order of substitution recites that it was made on motion of the plaintiff in person in open court. This is not disputed. Neither the defendant nor its attorney were present, nor was any notice given to them of the hearing of said motion. The only objection made to the validity of the order is that it does not appear that any notice of the time and place of the hearing of such motion was given to Dormitzer. Dormitzer filed an affidavit stating that he received no such notice. The case was pending in Contra Costa County, where plaintiff resided, and Dormitzer resided and had his office in Los Angeles County. Nearly a month prior to the making of the order of substitution the plaintiff mailed a letter to him stating that his future services were dispensed with. He does not deny that he received this letter. There is nothing in the record to show