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Beardsley v. Frame

73 Cal. 634 Court Cal. Decision date 1887-10-29 Docket No. 12199 English

Judges Belcher, C. C., and Hayne, C., concurred.

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p. 634
[No. 12199.
In Bank.
October 29, 1887.]
W. H. BEARDSLEY, Assignee etc., Appellant, v. FRANK FRAME et al., Respondents.

Headnote

Appeal — Notice of—Attorney of Record. — A notice of appeal to the Supreme Court, which is signed by the attorney of record in the court below, is not ineffectual because the attorney has not been admitted to practice in the Supreme Court, provided he is qualified to act as the attorney of record in the lower court.
Appeal from a judgment of the Superior Court of Del Norte County, and from an order refusing a new trial.
The action was brought by the plaintiff, as the assignee for the benefit of the creditors of Wicktor Ohlson, to recover damages for the alleged conversion of certain personal property. Judgment was rendered in favor of the defendants, from which, and an order refusing a new trial, the plaintiff appealed. The notice of appeal was signed by the attorney of record of the plaintiff in the lower court, who was qualified to act as an attorney in that court, but who had never been admitted to practice as an attorney in the Supreme Court. The respondents moved to dismiss the appeal on the ground that the no
p. 635
tice of appeal had not been signed by an attorney of the Supreme Court.
L. F. Coburn, and Sawyer & Burnett, for Appellant.
R. W. Miller, for Respondents.

The notice of appeal is the initiatory step taken in the Superior Court in order to obtain a hearing upon appeal in this court. That notice must be signed by the attorney of record in that court. (Prescott v. Salthouse, 53 Cal. 221 ; affirmed in Whittle v. Renner, 55 Cal. 395 .)

Being a proceeding which must be commenced in the Superior Court where the trial was had, it is not necessary that the attorney who there conducts it shall be entitled to practice law and be heard in that capacity in this court, provided he be qualified to act and is the attorney of record in the court below.

The motion to dismiss the appeal should be denied.

Belcher, C. C., and Hayne, C., concurred.

For the reasons given in the foregoing opinion, the motion to dismiss the appeal is denied.

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