Hays v. Ewing

McKinstry, J. This action is against an attorney at law for neglect of duty in the management of a certain action brought by the present plaintiff against Cogswell et al. The defendant demurred generally, and also on the special ground that the complaint shows that the statutory limitation has run against the alleged cause of action. The judgment for defendant in Hayes v. Cogswell was made November 19, 1881. This action was commenced June 16, 1884, and so far as it is based on any neglect of the defendant prior to the judgment of November, 1881, was barred by section 339 of the Code of Civil Procedure. The complaint herein avers that the plaintiff, subsequent to and within one year after the judgment in Hayes v. Cogswell, demanded of the defendant herein that he should take an appeal on behalf of the plaintiff in that action. But the facts stated in this complaint show that an appeal would have been of no avail. Judgment affirmed. Myrick, J., and Ross, J., concurred.