Starkweather v. Eddy

THE COURT.

Motion to dismiss the appeal herein “on the grounds and for the reasons that the attorneys making such appeal and signing the notice of appeal and the appellant’s brief on appeal, are not the attorneys of record of said defendant and appellant herein.”

The motion is supported by an affidavit' of counsel for respondent and a certificate of the clerk of the trial court, from which it appears that George P. Cook is the attorney of record in said ease for the defendant and appellant; that there has been no substitution of any other attorney or attorneys in his place made or filed as provided by law, and that the notice of appeal and appellant’s brief herein are signed by F. E. Davis, L. E. Dadmun, and Davis & Dadmun, and are not signed by said George P. Cook. Respondent cites

Abrahms

v.

Stokes,

39 Cal. 150,

Prescott

v.

Salthouse,

53 Cal. 221,

Whittle

v.

Renner,

55 Cal. 395,

Harrigan

v.

Bolte,

67 Cal. xix [8 Pac. 184], and

Anglo-California Trust etc. Co.

v.

Oakland Rys.,

191 Cal. 387 [216 Pac. 578], holding that a notice of appeal or a notice of intention to move for a new trial, to be effective, must be signed by the attorney of record for the moving party, and that in default thereof

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such appeal or such proceeding for new trial may be dismissed upon motion. Respondent insists that we must follow the rule of the cited cases and dismiss the appeal. Appellant urges with much earnestness that we should overrule those cases. The circumstances of the present case do not call upon us to do either. The rule which requires a notice of appeal or of intention to move for a new trial to be signed by the attorney of record for the moving party has always' been subject to the qualification that the failure so to do is a defect which may be waived by the adverse party by failure seasonably to object thereto, and that slight circumstances of acquiescence are sufficient to show such waiver. This qualification is indicated by the statement in