Gill v. Southern Pacific Co.

In the year 1909, the plaintiff began an action against the defendant to recover damages alleged to have been sustained by plaintiff because of the negligence of the defendant. An amended complaint was filed, to which a demurrer was interposed and the cause was pending awaiting action upon the demurrer. Paul C. Dormitzer was the attorney for the plaintiff and M. R. Jones was the attorney for the defendant. On September 1, 1911, on motion of the plaintiff, the superior, court made an order substituting L. F. Tormey as attorney for the plaintiff instead of said Dormitzer. Notice of this substitution was duly served upon Jones. Thereafter Tormey and the plaintiff effected a settlement of the case with an agent of the defendant whereby the plaintiff agreed to accept five hundred dollars in full settlement thereof. The money was paid and a releáse executed. In pursuance of this settlement, on January 18, 1912, by an order directed to the clerk and filed in the action the plaintiff dismissed the action.

In March following the plaintiff filed and served a so-called “motion” for relief as follows: First, to vacate the order of substitution of the attorneys aforesaid; second, to vacate and set aside the compromise and settlement above mentioned;

It is extremely doubtful if this notice can be considered as a sufficient notice of appeal from the order refusing to vacate the substitution proceedings. The plaintiff himself, in his proposed bill of exceptions, which was settled by the court, recites that he has filed his notice of appeal from the order denying the motion to set aside the dismissal and from the order denying the motion to set aside the settlement. Admitting, however, that it may be considered as an appeal from the first order mentioned, the record does not show that the order was erroneous, so far as the plaintiff is concerned. The bill of exceptions does not purport to contain all or any of the evidence introduced on the hearing of the motion to substitute attorneys. The order of substitution recites that it was made on motion of the plaintiff in person in open court. This is not disputed. Neither the defendant nor its attorney were present, nor was any notice given to them of the hearing of said motion. The only objection made to the validity of the order is that it does not appear that any notice of the time and place of the hearing of such motion was given to Dormitzer. Dormitzer filed an affidavit stating that he received no such notice. The case was pending in Contra Costa County, where plaintiff resided, and Dormitzer resided and had his office in Los Angeles County. Nearly a month prior to the making of the order of substitution the plaintiff mailed a letter to him stating that his future services were dispensed with. He does not deny that he received this letter. There is nothing in the record to show

Furthermore, this proceeding for substitution was one in which the defendant had no direct interest. The plaintiff had the absolute right to change his attorney and to have the one he preferred substituted as the attorney of record. (Gage v. Atwater, 136 Cal. 170 , 172, [ 68 Pac. 581 ].) The only person who is entitled to notice of the motion for substitution is the attorney first employed. Where a plaintiff has obtained a substitution without sufficient notice to the attorney, such attorney may object to the substitution and have the same set aside. So, also, the defendant if he learns of such defective notice or want of notice may perhaps have the order avoided. But we know of no authority for the proposition that the plaintiff, having chosen another attorney and having procured an order substituting a new attorney in the place of the old, and having proceeded thereupon with his new attorney to make a settlement of the cause with the defendant, may thereafter ask to have the settlement set aside on the ground that it was not sanctioned by the former attorney and support this claim by showing that the order of substitution was made without due notice to such former attorney. In the absence of fraud, reason and good sense demand the rule that the plaintiff should be bound by such a contract and the defendant protected therein. The order was made and was regularly entered of record. The defendant’s attorney was served with notice thereof as provided in section 285 of the Code of Civil Procedure. Nothing appeared of record to impeach its validity. The defendant’s attorney had the right to recognize the new attorney and proceed to deal with him, at least so long as he had no information to impugn the validity of the order. The want of any recital of the giving of notice to the former attorney did not affect its validity nor put him on inquiry. It was not incumbent

There was no evidence of fraud in making the settlement. The money agreed upon was paid by the defendant and accepted by the plaintiff. He has neither returned it nor offered to return it. The only statement in the record tending to establish fraud is that of the plaintiff and his former attorney, Dormitzer, that the consideration paid was small and inadequate. These statements are mere matters of opinion, not binding upon the court below, and they are directly denied by the affidavit on behalf of the defendant. Even if true, it is well settled that inadequacy of consideration alone, at least unless such as to shock the conscience, does not constitute or establish fraud. (2 Pomeroy’s Equity Jurisprudence, sec. 926.) There is no proof of any advantage whatever having been taken of the plaintiff. In the course of the negotiations for settlement he consulted several attorneys. The defendant’s attorney persistently refused to advise him in the matter. After consulting with such attorneys as he desired he voluntarily accepted the offer made by the defendant’s agent. No reason appears why it should not have been confirmed by the court if the matter had come before it on the merits. Under these circumstances it would be idle to vacate the proceedings even if there were irregularities sufficient for that purpose. A judgment will not be vacated for irregularity in procedure if it appears that upon the merits it was just and right. The party applying for

The orders appealed from are affirmed.

Sloss, 'J., Melvin, J., Lorigan, J., Henshaw, J., Lawlor, J., and Angellotti, C. J., concurred.