From Casetext: Smarter Legal Research

McDonald v. McConkey

Supreme Court of California
Jan 1, 1880
54 Cal. 143 (Cal. 1880)

Summary

In McDonald v. McConkey, 54 Cal. 143, where the appeal was taken by an attorney not the attorney of record in the court below, the circumstance that respondent's attorney joined with him in certifying to the transcript was held sufficient to show such waiver.

Summary of this case from Starkweather v. Eddy

Opinion

         Motion to dismiss an appeal from the Third District Court, County of Alameda.

         COUNSEL:

         J. R. Palmer, for Appellant.

          A. H. Griffith, for Respondent.


         JUDGES: Department No. 2, Thornton, J. Myrick, J., and Sharpstein, J., concurred.

         OPINION

          THORNTON, Judge

         In this cause, the respondent, by his attorney, J. R. Palmer, Esq., moves to dismiss the appeal and strike the transcript from the files, on the grounds that the attorney (A. H. Griffith) who signed, filed, and served the notice of appeal, and filed and served the transcript herein, was not, at the time of so doing, the attorney of record for the defendant and appellant, and was not, therefore, competent to give such notice or take an appeal in the cause.

         There appears in the transcript, at the end thereof, a certificate, signed by A. H. Griffith, as attorney for appellant, and J. R. Palmer, as attorney for respondent, to the effect that the persons above named, as attorneys for the plaintiff and defendant, certify that the foregoing transcript embraces a full, true, and correct copy of the judgment roll, notice of motion for new trial, notice of motion to dismiss motion for new trial, order dismissing the same, notice of appeal, and that an undertaking on appeal in due form has been duly filed.

         We are inclined to the opinion that Mr. Griffith was competent to give the notice of appeal, and to take an appeal in the cause, for the reason that an appeal, like a writ of error, is a new proceeding, and that the party to the action has full power to constitute an attorney to take and prosecute the appeal, other than the attorney of record in the cause in the Court below.

         But waiving this question, which we do not intend to decide, we think the attorney for the respondent admitted the competency of Griffith, by joining with him in the certificate referred to, and thus waived the right to object to his competency in the mode which he has adopted.

         The appeal is therefore regularly here, and the motion must be denied.          The question as to the competency of Griffith to act as attorney for defendant, in the Court a quo, in the mode set forth in the transcript, is not passed on here, and is reserved until the argument of the cause.


Summaries of

McDonald v. McConkey

Supreme Court of California
Jan 1, 1880
54 Cal. 143 (Cal. 1880)

In McDonald v. McConkey, 54 Cal. 143, where the appeal was taken by an attorney not the attorney of record in the court below, the circumstance that respondent's attorney joined with him in certifying to the transcript was held sufficient to show such waiver.

Summary of this case from Starkweather v. Eddy

In McDonald v. McConkey, 54 Cal. 143, the appeal was taken by an attorney not the attorney of record in the court below.

Summary of this case from Davis v. Rudolph
Case details for

McDonald v. McConkey

Case Details

Full title:McDONALD v. McCONKEY

Court:Supreme Court of California

Date published: Jan 1, 1880

Citations

54 Cal. 143 (Cal. 1880)

Citing Cases

Whittle v. Vanderbilt Mining 25padc289& Milling Co.

''Whenever the equities are unequal, there the preference is constantly given to the superior equity. See,…

Starkweather v. Eddy

As noted above, slight circumstances of acquiescence are sufficient to show such waiver. In McDonald v.…