People ex rel. Coon v. Plymouth Plank Road Co.

Cooley, J: Tlie motion for a new trial in this cause is denied. If good cause for a new trial existed, tlie motion should hayo been made at tlie last term; the report having been on file considerably more than a month before that term closed.' But wo think no good cause existed. What is relied upon is, that the attorney for respondents, upon whom they depended for the trial of tlie case, was unable from illness to attend to it when the trial took place, and therefore formally withdrew from the case, serving a written notice thereof [250] upon counsel for tho people, who nevertheless wont on with tho trial. It is claimed that this withdrawal took from the relators tho right to proceed. The statute, — Comp. L., § 5630, — provides that “When any attorney or solicitor shall dio, bo removed or suspended, or coaso to act qs such, the person for whom ho was acting shall bo notified to appoint another attorney or solicitor, at least thirty days before any proceeding shall be had- against such person, in tho matter •wherein such attorney or solicitor was acting for him.” We do not understand this to apply to a case whore a practicing attorney for any reason declines to go on with a particular case while still continuing in practice. It might be made tho means of serious mischief if it could have such a construction. The plain meaning of Hie statute is to provide for cases in which the attorney or solicitor, by reason of death, disability, or other cause, has ceased to practice in the court. Ilis refusal to proceed in a particular case is not ceasing to “act as such” attorney or solicitor; it does not even disconnect him with tho case; for that can only bo accomplished by consent of the parties, or of the court, or by regular proceedings for the substitution of another. Several objections are made to the motion on behalf of the relators for final judgment. Tho first is, that tho judge has not certified tho evidence. But this was not required by the order sending tho case down for trial. Another is, that tho finding upon the issue is not sufficient to warrant a judgment, and it is claimed that it cannot be aided by answers of the jury to specific questions put to them which perhaps show defaults of the company not shown by that finding. The finding is, that tho plank road of respondents has been for more than six years in a broken and worn-out condition for its entire length, and has been for that time and still continues to be entirely unsafe, and in an unsafe condition for vehicles to pass over and upon. This finding covers tho whole substance of the issue. It is said the jury do not find that it was in this unsafe condition through the neglect or fault of the respondents; [251] but in view, of tlio time covered by the verdict, we think negligence is a legal conclusion. It was also objected, somewhat faintly, that the evidence-did not warrant the verdict, but it seems to have been ample. Judgment of ouster must be entered. Geavbs, Cu. J., and CAMPBELL, J., concurred. MarstoN, J., did not sit in this case, having been connected with it as attorney general.