Philbrook v. Superior Court

Henshaw, J. Samuel W. Latz commenced an action in the superior court of the city and county of San Francisco against Louisa A. G-reenhood, executrix, appearing therein in person and not by attorney. After this action was at issue and ready for trial Horace W. Philbrook, petitioner herein, presented to the judge of the court a written transfer and assignment by Latz to himself of Latz’ interest and cause of action in said suit, and applied to the court for an order substituting himself in place of Latz as plaintiff therein.

In response to this application an order was made as permitted by the code, continuing said action in the name of Latz for the benefit of Philbrook, (Code Civ, Proc., sec. 385.)

Thereafter the cause coming on for trial petitioner herein appeared in person asserting the right in his own interest and on his own behalf to conduct the case of the plaintiff in the action so being prosecuted for his benefit.

The court, upon objection made by defendant’s attorney, refused to allow him to do so, and the case coming thus to a standstill it was continued to await a determination of the question. It is under these circumstances that application is made to this court for'a writ of mandate.

[33]The refusal of the trial judge, as fully appears by the transcript of the proceedings had in his court, and herd made a part of his answer, was based solely upon what he deemed to be his duty in the premises under the judgment of this court suspending said Philbrook from his office of attorney-at-law. (In re Philbrook, 105 Cal. 471; 45 Am. St. Rep. 59.)

In making that refusal the judge said: “A few days ago you came here with a written assignment from Mr. Latz to yourself, from which it appears that you are the assignee and owner of the claim—a claim for services on behalf of Mr. Latz originally, I accept that assignment as made to you, as I have stated before, in perfect good faith that you are the owner of that claim, and, in conformity with the code of this state, upon your motion, I made an order that this action should be prosecuted under the name of Mr. Latz, but for your benefit as the assignee.

“Now, you attempt here to present this case on your own behalf, as you say; and the' suggestion is made by Mr. Houghton as an attorney of this court .... that you cannot present vthis matter as an attorney. I think he is right about it. I think I should be in contempt of the supreme court myself if I allowed such an evasion of their judgment.