Nicol v. City & County of San Francisco

GAROUTTE, J.

This appeal is before us from a judgment dismissing an action for lack of prosecution. The action is one for damages to real property, occasioned by reason of an overflowed sewer, and was brought in the year 1890. Issue was joined promptly, but the cause did not come to trial, and in the year 1898, upon motion of the city, the action was dismissed for laches in the prosecution. Two years after the action was brought plaintiff’s attorney died) and nothing further was done in the matter until the present proceedings to dismiss were inaugurated.

The motion before the court was submitted upon the affidavits of plaintiff and defendant’s attorney. Plaintiff first objected

[289]

to the jurisdiction of the court to make any order whatever in the premises, upon the ground that defendant had never served upon him the notice required by section 286 of the Code of Civil Procedure. That section 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.” In view of the fact that plaintiff upon April 7, 1898, appointed an attorney to represent him in the litigation, and that the hearing upon the motion to dismiss was not had until April 15th, there is nothing in the point made. He had an attorney at the hearing who represented him fully upon the merits of the motion, and in no degree is it claimed that he was injuriously affected by a failure to serve the notice required by the aforesaid section of the code. If the plaintiff had failed to appear at the hearing upon the fifteenth day of April, either personally or by attorney, then the lack of service of such a notice would probably have been good cause to justify the invoking of the aforesaid provisions of the statute. But when he did appear at that time, and hy his attorney presented his affidavit going to the merits of the motion, and fully litigated the whole matter upon the merits, any question of lack of jurisdiction upon the part of the court to proceed with the hearing is eliminated from the ease; and this, too, even though his attorney there made the preliminary objection that the notice contemplated by the statute had not been given.