People ex rel. Downer v. Norton

Relatok conveyed to Y. one-third of certain real estate, in consideration that Y. should attend to a suit pending in the name of relator, for the recovery of the property. Y. employed an attorney to conduct the suit, the attorney of plaintiff being discharged. Relator moved the Court below to substitute another attorney in place of the one employed by Y. Court refused to grant the motion—the only reason urged for the substitution being, that Y. had neglected to prosecute the suit; and it not being shown that the agreement between him and relator had been canceled by the parties. Relator applies to this Court for mandamus: Held, that the writ lies ; that the agreement between relator and Y. does not exclude the former from the right to prosecute the suit, and employ such attorney as he chooses; that the exercise of this right will not affect any right Y. may have in the property or suit; that he may intervene, if a proper case be made, or prosecute his rights independently, or wait until a recovery, and then claim his rights under the contract with relator.

Application to the Supreme Court for a mandamus to the Judge of the Twelfth District. The application is based upon an affidavit by relator, setting forth, in substance, that he is plaintiff in the suit of George Downer v. Henry Thompson, pending in the Twelfth District Court; that the suit was instituted for him by Messrs. F. M. & H. H. Haight, attorneys at law, in 1856, for the recovery of one hundred vara lot, No. 39, in the city of San Francisco, and by them conducted until April 10th, 1858, when relator entered into an agreement with one Yountz by which he agreed to take charge of, and to prosecute the suit to final judgment, at his own expense—without cost or expense to relator—in consideration of an undivided one-third interest in said lot; which relator on that day conveyed to said Yountz, and at the same time settled with the Messrs. Haight, who withdrew from the cause, and ceased thenceforth to be the attorneys of relator; that, after making said agreement, Yountz employed E. L. Goold, an attorney at law, to conduct the case for him; and that on the sixth of November, 1858, the cause was referred, by stipulation, signed by Goold as attorney for plaintiff, and E. W. F. Sloan for defendant, to J. P. Treadwell to try the issues of law and fact and report a judgment; that various proceedings were had therein, until the eighteenth of November, 1859, when the cause was closed by Goold upon the part of plaintiff, since when, no steps have been taken—Goold having soon thereafter left the State, and continued absent ever since; that since said eighteenth of November, relator has frequently urged Yountz to proceed with the cause, and comply with his agreement, but without effect; that said Goold has never been substituted as attorney of record in the cause, by any order of Court, nor has he been employed by relator, but has appeared solely at the instance and request of Yountz, and as his attorney; that in March, 1860, relator employed S. 0. Houghton, an attorney at law, to appear and conduct said cause on behalf of plaintiff; and a motion was made before said Twelfth District Court, to substitute Houghton as attorney of record, in the place of the Messrs. Haight; that the motion—notice of which had been served on A. C. Whitcomb, who had the management of the business of said Goold during his absence from the State, and on said Haights—was opposed by Whitcomb on behalf of Goold and Yountz, the Messrs. Haight not appearing, and in accordance with an order of the Court, plaintiff and Yountz filed affidavits setting forth the facts, upon which, the motion for substitution was subsequently denied. The application of relator also states, that Yountz had no intention of further prosecuting the suit; that the undivided two-thirds of the lot belong to relator, and that a suit has been brought, and is now pending, by relator against Yountz, for the other one-third, because of the failure of Yountz to comply with his agreement, and to rescind the same; and that relator is unable to enforce his rights to said property, which is worth $30,000, unless he be permitted to select his own attorney. In compliance with the order of the Court on the hearing of the motion, relator filed his affidavit, setting up the foregoing facts, and further, that the rent of the lot was worth four hundred dollars per month. that Yountz was insolvent, possessed of no property, etc., and that his creditors were recording judgments against him, so as to become a lien on the lot. In answer, Yountz files his affidavit admitting the agreement, as stated by relator; the withdrawal of the Messrs. Haight, and his employment of Goold; and setting up, among other things, that the Messrs. Haight, at the written request of relator, substituted Goold as attorney of record in the cause, and that Goold, aided by affiant in person, took the testimony, and faithfully conducted the case before the referee; that affiant has not neglected the cause, hut has been unavoidably delayed therein by the necessary absence of Goold at Washington, who is expected back by the next steamer; that relator has never, since said agreement, claimed or exercised any control over the cause, until the present motion; denies insolvency; says the lot is worth $60,000 ; and that he will be able to pay his debts independent of his interest therein; and that Houghton is young and inexperienced, and unacquainted with titles in San Francisco. There was, also, filed a substitution of Goold, as attorney of record, in place of the Messrs. Haight, signed by them, dated April, 1860, stating that it was intended to take the place of a similar substitution given a year or more ago, but now lost or mislaid. The Supreme Court granted an alternative writ. The District Judge answered, in effect, that he refused the substitution, because the agreement between relator and Yountz was still in force, and that under it, Yountz was a coowner of the property, specially empowered to manage the cause, by a power of attorney, coupled with an interest, and had a right to continue his own attorney.