People v. Bouchard
Decision Date | 22 November 1957 |
Docket Number | Cr. 6138 |
Court | California Supreme Court |
Parties | The PEOPLE of the State of California, Plaintiff and Appellant, v. Rosario Joseph BOUCHARD, Defendant and Respondent. |
Edmund G. Brown, Atty. Gen., William E. James, Deputy Atty. Gen., William B. McKesson, Dist. Atty. (Los Angeles), Jere J. Sullivan, Fred N. Whichello, Lewis Watnick and Robert Lederman, Deputy Dist. Attys., Los Angeles, for appellant.
Gladys Towles Root, Los Angeles, in pro. per.
Eugene V. McPherson and Joseph A. Armstrong, Los Angeles, for movant.
The People have appealed from an order granting a motion to set aside an information charging defendant with possession of a dangerous weapon, and Gladys Towles Root, the attorney who represented defendant in the trial court, seeks to quash service upon her of the appellant's opening brief.
When Mrs. Root was informed by the county clerk that a copy of the transcript was being sent to her, she wrote to the district attorney and to the clerks of the superior court and the District Court of Appeal stating that she was not the defendant's attorney on appeal and that all correspondence with respect to the appeal should be with defendant, whose address she did not know. Subsequently, appellant's opening brief was served on Mrs. Root, and she then appeared specially before the District Court of Appeal and moved to quash such service. In support of her motion, she filed an affidavit in which she states that she has not heard from defendant since the granting of the motion to set aside the information, that no arrangements for representation with or without fee have been made with him, and that she believes that she has no authority or right to represent him. The District Court of Appeal granted the motion, and this court granted a hearing.
It clearly appears that Mrs. Root was attorney of record for defendant in the trial court, and her claim, as indicated by her affidavit, is that her authority to act ceased when the superior court granted the motion to set aside the information.
It has been held that the presumption that an attorney of record has authority to appeal will prevail unless the appellant himself objects or there is a clear showing of lack of authority. United States of Mexico v. Rask, 109 Cal.App. 497, 500-502, 293 P. 108; see Parkside Realty Co. v. MacDonald, 167 Cal. 342, 346, 139 P. 805; Board of Commissioners of Funded Debt of City of San Jose v. Younger, 29 Cal. 147, 149; cf. Dodd v. Tebbetts, 198 Cal. 333, 338, 244 P. 1081; Woodbury v. Nevada, etc., Ry. Co., 120 Cal. 367, 369, 52 P. 650. There would seem to be just as much reason to presume that an attorney who has obtained a favorable judgment has authority to protect it and to take any necessary steps to insure that it is not set aside or reversed. Accordingly, it has been held that service can be made upon the attorney of record after entry of judgment in a civil case where there has been no substitution in the manner prescribed by law. Grant v. White, 6 Cal. 55, 56 ( ); Sherman v. Panno, 129 Cal.App.2d 375, 378-380, 277 P.2d 80 ( ); Scarpel v. East Bay Street Ry., 42 Cal.App.2d 32, 33, 115 P.2d 862 ( ); United States v. Curry, 6 How. 106, 47 U.S. 106, 111-112, 12 L.Ed. 363 ( ); Henderson v. Richardson Co., 4 Cir., 25 F.2d 225, 226 (same); see Brown v. Arnold, 8 Cir., 131 F. 723, 725-726; cf. Reynolds v. Reynolds, 21 Cal.2d 580, 584, 134 P.2d 251 ( ); Russ v. Russ, 68 Cal.App.2d 400, 405-406, 156 P.2d 767 (same).
Section 284 of the Code of Civil Procedure provides: Section 285 provides: It may be noted that it would have been unnecessary to refer to 'civil cases' in subdivision 2 of section 284 if that section had been intended to apply only to civil actions. No claim is made that there was any compliance with these sections.
Rule 30 of the Rules on Appeal states that the rules governing appeals from the superior court in civil cases shall be applicable to appeals in criminal cases 'except where express provision is made to the contrary, or where the application of a particular rule would be clearly impracticable or inappropriate.' Rule 48(b) provides: ...
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