Casseta v. Del Frate

California Court of Appeal

Casseta v. Del Frate

298 P. 55, 113 Cal. App. 297, 1931 Cal. App. LEXIS 925

CourtCalifornia Court of Appeal

DecidedApril 9, 1931

DocketDocket No. 7890.

StatusPublished

This text of 298 P. 55 (Casseta v. Del Frate) is published on Counsel Stack Legal Research, covering California Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Casseta v. Del Frate, 298 P. 55, 113 Cal. App. 297, 1931 Cal. App. LEXIS 925 (Cal. Ct. App. 1931).

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Opinion

THE COURT.

Appellants were attorneys of record for the plaintiffs in the above-entitled action. On November 7, 1930, the trial court on motion by plaintiffs made its order substituting other attorneys, and the present appeal was taken from the order by the attorneys first mentioned. The plaintiffs have moved to dismiss the appeal upon the ground that the same is frivolous.

A client has an absolute right to change his attorney at any time if the latter has no interest in the subject matter of the action (Code Civ. Proc., sec. 284; Lee v. Superior Court, 112 Cal. 354 [44 Pac. 666]; Gage v. Atwater, 136 Cal. 170 [68 Pac. 581]). But in the present case appellants claim that under their contract of employment they acquired an interest in the subject matter of the suit. This question must be determined from the construction to be given the contract, and involves a consideration of the merits of the appeal. Under such circumstances it is well settled that a motion to dismiss is in substance but a motion to advance the cause for hearing and should be denied without prejudice to the future consideration of the appeal upon the merits (Randall v. Duff, 105 Cal. 271 [38 Pac. 739]; Chino etc. Land Co. v. Hamaker, 171 Cal. 689 [154 Pac. 850]; Jenks v. Lurie, 195 Cal. 582 [243 Pac. 370]).

The motion is denied.

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THE COURT.

Appellants were attorneys of record for the plaintiffs in the above-entitled action. On November 7, 1930, the trial court on motion by plaintiffs made its order substituting other attorneys, and the present appeal was taken from the order by the attorneys first mentioned. The plaintiffs have moved to dismiss the appeal upon the ground that the same is frivolous.

A client has an absolute right to change his attorney at any time if the latter has no interest in the subject matter of the action (Code Civ. Proc., sec. 284; Lee v. Superior Court, 112 Cal. 354 [44 Pac. 666]; Gage v. Atwater, 136 Cal. 170 [68 Pac. 581]). But in the present case appellants claim that under their contract of employment they acquired an interest in the subject matter of the suit. This question must be determined from the construction to be given the contract, and involves a consideration of the merits of the appeal. Under such circumstances it is well settled that a motion to dismiss is in substance but a motion to advance the cause for hearing and should be denied without prejudice to the future consideration of the appeal upon the merits (Randall v. Duff, 105 Cal. 271 [38 Pac. 739]; Chino etc. Land Co. v. Hamaker, 171 Cal. 689 [154 Pac. 850]; Jenks v. Lurie, 195 Cal. 582 [243 Pac. 370]).

The motion is denied.

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Bluebook (online)

298 P. 55, 113 Cal. App. 297, 1931 Cal. App. LEXIS 925, Counsel Stack Legal Research, https://law.counselstack.com/opinion/casseta-v-del-frate-calctapp-1931.

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