McMahon v. Thomas

Van Fleet, J. At the hearing in the court below of the defendants’ motion for a new trial, which was made upon the minutes of the court, plaintiff objected to the defendants being heard, and asked that the motion be denied upon the ground that no proper notice of the motion had been given, in that the notice of motion was not signed by the attorney of record of defendants in the cause. The judge reserved his ruling on the objection, stating that he would consider and determine the same in disposing of the motion. Subsequently he made an order denying the motion for a new trial, from which order defendants have appealed; and plaintiff, having preserved his said objection in the settlement of the statement, now renews the objection in this court, and asks that the order denying a new trial be affirmed upon that ground, without inquiry into the merits. If [590]the objection is well taken, this would seem to be the proper practice. (Gumpel v. Castagnetto, 97 Cal. 16; Estate of Ryer, 110 Cal. 556.)

Gr. B. Montgomery was the attorney of record for the defendants in the court below. He alone signed the answer. The first trial resulted in a judgment for defendants. Plaintiff moved for a new trial, which was granted, and from that order the defendants appealed to this court. Upon that appeal L. W. Jefferson, Esq., appeared as one of the attorneys for defendants. He signed his name with that of the attorney of record to the notice of appeal, and also to the stipulation as to the correctness of the transcript thereon, and he argued that appeal in this court. That order being affirmed, the case went back for a new trial, and when it came up in the lower court, Montgomery, the attorney of record, appeared, and, as recited in the statement, “moved the court that J. J. May, Esq., be substituted as attorney of the defendants for the attorneys theretofore of said defendants, and upon said motion of said Montgomery the court remarked: ‘Very well; file your written consent’; but no consent of either of the defendants, or their said attorneys, or either of them, was filed with the clerk, or entered upon the minutes, and no notice was given from attorney to client, or client to attorney, at said or any other time, of any application for such order. Thereupon said J. J. May alone tried said cause on behalf of the defendants.”

That trial resulted in a verdict for plaintiff, upon which the present judgment was entered. Within due time the notice of motion here in question, asking a new trial on behalf of the defendants, was served on plaintiff’s attorneys. This notice was signed by L. W. Jefferson alone, as attorney for the defendants. Subsequent to the giving of said notice, on July 22, 1895, when the motion was first on the calendar of the superior court for hearing, Jefferson appeared and had the clerk continue the same to a later date. This was in