Preston v. Eureka Art. Stone Co.

Citations

• 54 Cal. 198

Syllabus

<p>Substitution of Attorneys—Hew Triae—Irregularity—Accident or Surprise.—S. (the defendant’s attorney) in writing substituted 31. and another as attorneys in his place, and they served upon the plaintiffs’ attorney a written notice that they were substituted, but the substitution was not filed with the clerk. Judgment was afterward entered for the plaintiffs, the minutes reciting that the defendant appeared by S., (his original attorney) and that the judgment was by consent. In point of fact S. was not present, and knew nothing of the judgment until afterward; but 31. (as stated in his affidavit) was present in court on the day the judgment was entered, and being informed by the plaintiffs’ attorney that the case would be called, replied that he (plaintiffs’ attorney) must proceed as he thought fit, and that he (31.) should not give consent to any proceedings in the matter. Hotice of motion for a new trial, on the grounds of irregularity and surprise, was given more than a year after the rendition of judgment, (notice of the filing not having been served) and motion denied. Held, 1st. That after the service of notice of substitution on plaintiffs’ attorney, it would have been improper for him to recognize any other than the substituted attorneys as attorneys for the defendant. 2nd. That there was no irregularity of the Court, or of the adverse party, by which tlio defendant was prevented from having a fair trial; the defendant’s counsel having been present in Court on the day of the trial, and informed that the case would be called, and having made no objection to the Court, or, (as the Court construes his statement,) to the plaintiffs’ attorney: and 3rd. That there was no accident or surprise which ordinary prudence could not have guarded against.</p>