McFarland v. Cruickshank

PUTTER, J. On the return day of the summons which was personally served in this action instituted before John Hoel, a city justice of Sturgis, plaintiff appeared by his attorneys, Polk & Mc-Nenny, land the defendant appeared in person, and also by his regularly licensed attorney, Wesley A. Stuart, who upon his own affidavit applied for and obtained a change of venue to Bailey Madison, a police justice of that city. Thereupon a notice in regular form, stating the time ¡and place of trial, was duly issued b} Justice Madison, who personally delivered the same to the attorneys for the respective parties, but if was not personally served upon the defendant. On the day specified,- in this written notice plaintiff appeared for trial, and, after waiting one hour for the defendant, introduced his evidence and obtained a judgment, which was affirmed on appeal to the circuit court. The only question there presented for a reversal or urged cn this appeal from such judgment is that (the statute requires the notice of the time and place of trial to be served, not upon the attorneys, but personally upon the parties, and therefore the justice of the peace to whom the case was sent for trial never acquired any jurisdiction. While section 7 of the Revised Justices’ Code declares that such “notice must be served upon the parties at least one day before the time fixed for trial,” section- 1x4 thereof provides that “those provisions of the Code of Civil Procedure which are in their nature applicable to the organization, powers, and course of proceedings in justices’ courts'* * * are applicable to justices’ courts and the proceedings therein.” As -'a' general proposition of law, it has long been considered settled that notice to an attorney who has appeared in the action is notice to his diene, and consonant therewith section 561 of the Revised Cod'e of Civil Procedure is as follows: “When a party shall have an attorney in the action, the service of papers shall be made upon 'the attorney, in [191] stead of the party.” The contention of counsel for appellant v-'ould doubtless prevail had his client exercised the legal right to appear without an attorney, as the doctrine that notice to the attorney is notice to his client and that statute just quoted would not be applicable to the proceeding. Where the statute requires notice of appeal from justice’s count to be served upon “the party,” omitting the words “or his attorney,” 'used in the statute governing appeals from other courts, it was held that the omission was evidently without special design, and service upon an attorney in such case was sufficient. Welton v. Garibardi, 6 Cal. 246. Attorneys at law frequently prosecute and defend actions in justice’s-court «on behalf of litigants who are personally absent, and in many cases it would not be possible for the justice to whom a change of venue has been taken to serve a notice of the time and place of trial on the parties personally; and such is not the intention of the statute. Confessedly the defendant was bound by the act of his attorney in moving for and obtaining a change of venue, and Justice Madison, who had acquired jurisdiction of the parties and subject-matter for every purpose of the trial, very properly served such notice upon the attorneys in the action. ' - The judgment (appealed from is affirmed.