Weidekind v. Tuolumne County Water Co.

Foote, C. This is an action to recover damages alleged to have been done to the plaintiff’s mining claim, as is asserted, by the negligence of the defendant, which eventuated in the breaking of a dam, and the overflow of the water which it had confined.

The jury trying the cause returned a verdict for the defendant, upon which the court rendered judgment, from which, and an order overruling a motion for a new trial, the plaintiff has appealed.

The plaintiff assigns for error, that the court, against his objection, allowed an attorney and counselor at law who had formerly acted for plaintiff in this very case when it was previously tried to appear and act on behalf of the defendant on the trial of the cause last had. That attorney made this statement regarding the matter in the presence of the court, while the trial was progressing:—

“As the court well knows, Mr. Weidekind [the plaintiff] in the first trial of this case did retain Mr. Dorsey and myself. I drew the complaint and participated in the first trial of this case in this court. My compensation was to depend upon my success; as soon as I had earned that by our success, this plaintiff saw fit to discharge me and retain other counsel; with that act of his I have never found fault. I have never been paid a cent by him for my services. An appeal was taken from the judgment in that trial entered. A new trial was granted by our supreme court. A new trial was had. Judgment was entered against plaintiff. An appeal was again [388]taken, and another reversal followed. In each of these trials plaintiff has had other counsel than myself. I am here to assist Mr. Rodgers in the trial of this case, with all the knowledge I have gained in the three trials.”

Thereupon he did act as an attorney and counselor on the trial, sitting by and assisting the attorney of record, arguing disputed points before the court, and examining witnesses, the court having overruled the repeated objection of the plaintiff’s counsel.

This action of the court is contended to be such an irregularity on its part as prevented the plaintiff from having a fair trial. It was within the power of the court, if satisfied that the attorney in question had acted on the plaintiff’s side of the case on the former trial, to prohibit his acting on the other side in another trial. (Weeks on Attorneys at Law, sec. 120.)

There can be no doubt from the statement of the attorney to the court that he proposed to act, and it is also certain that he did act, as an attorney and counselor for the defendant in the trial of a cause where he had formerly acted for the plaintiff.