P. W. HAYS, Appellant, v. F. W. EWING, Respondent.Headnote
Attorney—Negligence—Action to Recover for—Statute of Limitations. — Under section
339 of the Code of Civil Procedure, a cause of action against an attorney for neglect of duty in the management of an action is barred at the expiration of two years after the neglect occurred.
Id. —Omission to Take Useless Appeal. —It is not a neglect ot duty for an attorney to omit to take an appeal on behalf of his client from a judgment rendered against him, if such appeal could not have availed the client.
Appeal from a judgment of the Superior Court of Modoc County.
The action in which the negligence of the defendant is alleged to have occurred was founded on a promissory note, executed on December 1, 1870, and .payable one day after date. The action was commenced July 8,1881. The answer set up the statute of limitations as a defense. On the trial, the court sustained the defense and dismissed the action. During the interval between the years 1870 and 1881, the defendants in the action were absent from the state, except for about one year. The complaint in the present action alleged that the negligence of the defendant consisted in his failure to plead such absence in order to remove the apparent bar of the statute, or to prove that fact on the trial, and in his omission to take an appeal from the judgment. The defendant demurred to the complaint on the ground that the action was barred by the statute of limitations. The demurrer was sustained, and judgment rendered for the defendant. The further facts are stated in the opinion of the court.
E. V. Spencer, for Appellant.
Matt. F. Johnson, C. L. Claflin, and F. W. Ewing, for Respondent.
This action is against an attorney at law for neglect of duty in the management of a certain action brought by the present plaintiff against Cogswell et al. The defendant demurred generally, and also on the special ground that the complaint shows that the statutory limitation has run against the alleged cause of action.
The judgment for defendant in Hayes v. Cogswell was made November 19, 1881. This action was commenced June 16, 1884, and so far as it is based on any neglect of the defendant prior to the judgment of November, 1881, was barred by section 339 of the Code of Civil Procedure.
The complaint herein avers that the plaintiff, subsequent to and within one year after the judgment in Hayes v. Cogswell, demanded of the defendant herein that he should take an appeal on behalf of the plaintiff in that action.
But the facts stated in this complaint show that an appeal would have been of no avail.
Judgment affirmed.
Myrick, J., and Ross, J., concurred.