Jones v. Spears

Morrison, C. J.: On the 4th day of December, 1874, the plaintiff recovered a judgment against the defendant for the sum of $4,100 and costs. The attorneys of record were D. M. McKenny and W, S. Montgomery. On the 30th of October, 1878, the following paper was filed in the case:

“ Title of Court and cause.

“ I hereby appoint and substitute Charles B. Fitzpatrick, attorney at law in the above-entitled action, in place and stead of all other attorneys therein" by me heretofore employed; and hereby constitute him my attorney of record, to do all things permitted an attorney at law for me, and in my stead, toward recovering the amount of the judgment in the above-entitled action. John W. Jones.

“ Plaintiff, and judgment creditor.”

On the 30th day of October, 1878, an execution was issued on the judgment, but by whose order or at whose instigation does not appear in the transcript. On the 11th day of November, 1878, a notice to quash the execution was addressed to and served upon “ Charles B. Fitzpatrick, plaintiff’s attorney.” The notice states that “ said motion will be based upon the following grounds, to wit:

[164]“ A motion for new trial is now pending in said cause, and by agreement of counsel of record for the said plaintiff, and counsel for the said defendant, it is stipulated that the plaintiff shall have all the time he desires to propose amendments to and settle the statement of the case on said motion for new trial; that no amendments have been proposed by the said plaintiff, and the settlement of said statement has not been made; and that the delay in proposing said amendments, and making the settlement of said statement, has been caused by the action of the plaintiff’s said attorney of record.”

On the 20th day of November, 1878, the following order was made in the cause by the Court:

“ The defendant moves the Court to quash execution heretofore issued in this case, on the ground that no regular substitution of attorney for plaintiff has been made according to law. The Court, after hearing the argument of counsel, ordered thafc the motion be sustained, to which plaintiff excepted. Now, on motion of plaintiff, it is ordered that a stay of all proceedings is granted for ten days, and that the sheriffs of Merced and Fresno counties are ordered to release the property which they hold under said execution.”