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Lee v. Superior Court

Supreme Court of California
Apr 11, 1896
112 Cal. 354 (Cal. 1896)


         Mandamus from the Supreme Court to the Superior Court of San Joaquin County. Joseph H. Budd, Judge.


         Adult and legally competent legatees of an estate may appear at any time, in person or by attorney, and assume control of their own interests, even though the court may have appointed an attorney to represent them. (Code Civ. Proc., secs. 1014, 1307, 1327, 1718; Commissioners v. Younger , 29 Cal. 149; 87 Am. Dec. 164; Lyons v. State , 67 Cal. 384; Carpenter v. Superior Court , 75 Cal. 599.) A party to an action or special proceeding may change his attorney at any time. (Code Civ. Proc., sec. 284; Prescott v. Salthouse , 53 Cal. 222; Faulkner v. Hendy , 99 Cal. 172; People's Bank v. Superior Court , 104 Cal. 644; 43 Am. St. Rep. 147; Smith v. Westerfield , 88 Cal. 379; In re Burton , 93 Cal. 463.)

         John A. Percy, for Petitioners.

          F. D. Nicol, for Respondent.

         JUDGES: In Bank.


         THE COURT

         This is a petition for a writ of mandate to the superior court to compel a substitution of attorneys. The petitioners are legatees under the will of a deceased person and reside out of the state of California. In the course of the probate proceedings the judge of the superior court appointed certain attorneys to represent the interests of petitioners. Subsequently, petitioners appointed an attorney of their own selection and moved that he be substituted in place of the attorney appointed by the court. This motion was denied by the court, principally upon the ground -- as we infer from the answer -- that the attorneys previously appointed had performed valuable services before the motion for substitution and were still efficiently protecting the interests of the petitioners, while the personal relations of the attorney selected by them to the executor of the will were such as might prevent him from serving them equally well.

         We do not think that this or any of the grounds suggested in the answer or argument justify the refusal to make the substitution. It is eminently proper that the court should appoint attorneys to guard the interests of absent heirs and legatees, and such attorneys are entitled, not only to a reasonable compensation for their services, but to considerate treatment. The motion originally made to vacate their appointment and to discharge them was, therefore, properly denied; but on the present motion for a substitution the petitioners being sui juris and insisting upon their right, the statute makes the granting of the order imperative. (Code Civ. Proc., sec. 284.)

         Peremptory writ granted.

Summaries of

Lee v. Superior Court

Supreme Court of California
Apr 11, 1896
112 Cal. 354 (Cal. 1896)
Case details for

Lee v. Superior Court

Case Details


Court:Supreme Court of California

Date published: Apr 11, 1896


112 Cal. 354 (Cal. 1896)
44 P. 666

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