Opinion
Docket No. 7890.
April 9, 1931.
MOTION to dismiss an appeal from an order of the Superior Court of the City and County of San Francisco substituting attorneys. Edmund P. Mogan, Judge. Motion denied.
The facts are stated in the opinion of the court.
Alfred J. Hennessy and William J. Gloria, in pro. per., for Appellants.
James F. Brennan and E.A. McDonald for Respondents.
THE COURT.
Appellants were attorneys of record for the plaintiffs in the above-entitled action. On November 7, 1930, the trial court on motion by plaintiffs made its order substituting other attorneys, and the present appeal was taken from the order by the attorneys first mentioned. The plaintiffs have moved to dismiss the appeal upon the ground that the same is frivolous.
[1] A client has an absolute right to change his attorney at any time if the latter has no interest in the subject matter of the action (Code Civ. Proc., sec. 284; Lee v. Superior Court, 112 Cal. 354 [44 P. 666]; Gage v. Atwater, 136 Cal. 170 [ 68 P. 581]). [2] But in the present case appellants claim that under their contract of employment they acquired an interest in the subject matter of the suit. This question must be determined from the construction to be given the contract, and involves a consideration of the merits of the appeal. [3] Under such circumstances it is well settled that a motion to dismiss is in substance but a motion to advance the cause for hearing and should be denied without prejudice to the future consideration of the appeal upon the merits ( Randall v. Duff, 105 Cal. 271 [38 P. 739]; Chino etc. Land Co. v. Hamaker, 171 Cal. 689 [ 154 P. 850]; Jenks v. Lurie, 195 Cal. 582 [243 P. 370]).
The motion is denied.