Hays v. Ewing (1886) · DecisionDepot

Hays v. Ewing

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Supreme Court Jul 12, 1886 No. No. 11163Published

Before: McKinstry

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Holding. The court held that the plaintiff's claim for attorney neglect was barred by the statute of limitations for acts occurring prior to the judgment, and that the failure to appeal did not constitute actionable neglect because an appeal would have been futile.

Issues

Whether the plaintiff's cause of action for attorney neglect was barred by the statute of limitations.
Whether the attorney's failure to file an appeal constitutes actionable neglect when such an appeal would have been of no avail.

Disposition. Affirmed

Quotations verified verbatim against the opinion

“so far as it is based on any neglect of the defendant prior to the judgment of November, 1881, was barred by section 339 of the Code of Civil Procedure.”

“But the facts stated in this complaint show that an appeal would have been of no avail.”

Synopsis

Attorney—Negligence—Action to Recover for—Statute of Limitations. — Under section 339 of the Code of Civil Procedure, a cause of action against an attorney for neglect of duty in the management of an action is barred at the expiration of two years after the neglect occurred.

Id. —Omission to Take Useless Appeal. —It is not a neglect ot duty for an attorney to omit to take an appeal on behalf of his client from a judgment rendered against him, if such appeal could not have availed the client.

McKinstry, J. This action is against an attorney at law for neglect of duty in the management of a certain action brought by the present plaintiff against Cogswell et al. The defendant demurred generally, and also on the special ground that the complaint shows that the statutory limitation has run against the alleged cause of action.

The judgment for defendant in Hayes v. Cogswell was made November 19, 1881. This action was commenced June 16, 1884, and so far as it is based on any neglect of the defendant prior to the judgment of November, 1881, was barred by section 339 of the Code of Civil Procedure.

The complaint herein avers that the plaintiff, subsequent to and within one year after the judgment in Hayes v. Cogswell, demanded of the defendant herein that he should take an appeal on behalf of the plaintiff in that action.

But the facts stated in this complaint show that an appeal would have been of no avail.

Judgment affirmed.

Myrick, J., and Ross, J., concurred.

Hays v. Ewing

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