Livermore v. Webb

McKinstry, J.: The appeal is by defendants Greene and Jackson from a judgment adjudging and decreeing that defendant C. C. Webb is the sole owner in fee of all the lands described in the complaint, and that neither the plaintiffs nor any of the other defendants have any estate, right, title, or interest in the lands, or any portion of them.

Respondent asks that the cause be stricken from our calendar, because, as he claims, no appeal has properly been taken. The judgment roll shows that Samuel L. Cutter, Esq., had appeared as attorney for defendants Greene and Jackson in .the Court below. The notice of appeal is subscribed by James B. Townsend, Esq., as attorney for the said defendants, while the record fails to show any formal substitution of Townsend for Cutter, or any notice of such substitution.

When an attorney is changed, and written notice thereof is not served upon an adverse party, the latter must (may) continue to recognize the former attorney. (Code Civ. Proc. § 285.) The requirement that notice be served upon the adverse party is for the protection of such adverse party, and may be waived by him or his attorney. Here the attorneys for plaintiffs acknowledged “ due service ” of the notice of appeal, and the attorneys for defendant Webb signed the acceptance of service following: “We have received, this 11th day of March, 1880, a duplicate of the within notice.” We construe this to be a waiver of any objection to the notice. If the attorneys for Webb intended to rely upon the want of notice of substitution, they should have returned the notice or refused to acknowledge the service of it. The case is different from Prescott v. Salthouse, 53 Cal. 221, cited by respondent. We think the motion to strike the cause from the calendar should be denied.

As stated by appellant in his first point: “ The appeal being from the judgment only, must be determined upon the judgment [491]roll alone, a certified copy of which, with the notice and undertaking on appeal, constitutes the record herein.”

Section 670 of the Code of Civil Procedure provides:

“ Immediately after entering the judgment, the clerk must attach together and file the following papers, which constitute the judgment roll:

“ 1. In case the complaint be not answered by any defendant, the summons, with the affidavit or proof of service, and the complaint, with a memorandum indorsed thereon, that the default of the defendant in not answering was entered, and a copy of the judgment.