30 Mont. 8 | Mont. | 1904
prepared the opinion for the court.
This is an application for a writ of mandate to- compel tiie district court to enter an order substituting attorneys.
It appears that one Calvin P. Davis, by virtue of contracts of settlement and decrees of court entered in accordance therewith, became and is. entitled to a certain distributive share of the estate of Andrew J. Davis, deceased; that he had been represented during all the time of this settlement by the law firm, of Logan, D'e Mond & Harby, of New York, and C. P. Drennan, of Butte, Montana, and that they still appear as attorneys of record in said cause. It was agreed by Galvin P. Davis that all money coming to- him should be distributed to said attorneys, and by them paid to Davis. On December 2, 1901, said Calvin P.
Neither Calvin P. Davis, an incompetent person, nor his estate, can make any appearance whatsoever, except by and through the legally appointed guardian; and if these attorneys are not the attorneys for the guardian it is not apparent by what authority they can make any appearance whatsoever in any action or matter affecting the interests of this estate. They, however, by their affidavits filed, protest against any order being made removing them as attorneys and substituting any one else, so that there may be no question that they will receive the balance of their fees.
Section 399, Code of Civil Procedure, so far as-applicable to> this, proceeding, provides that the attorney in an action may be changed “upon the order of the court upon the application of either client or attorney, after notice from one to the other.” The general rule under similar statutes appears, to be that a party has an absolute right to change his attorney at will, and without assigning any cause therefor, unless it appears that some good reasons exist which justify- the court in refusing to make the order. (Weeks, Attorneys- at Law, par. 250; Lee v. Superior Court, 112 Cal. 354, 44 Pac. 666; 20’ Ency. Pl. and Prac. 1013.)
It is claimed by the respondents that the action of the court in refusing to make this order of substitution was- a, judicial act, and that such acts cannot be controlled • by mandamus. It is elementary that mandamus will not lie to interfere- with the exercise of a court’s discretionary power. (State ex rel. Harris v. District Court, 27 Mont. 280, 70 Pac. 981.)
A different rule, however, prevails in matters where the court cannot exercise any discretion.
In Lee v. Superior Court, supra, which was also an application for a writ of mandate to compel the substitution of attorneys, the record contained the reasons why the court had refused the order. The appellate 'court reviewed these reasons, and held that they were not sufficient, and ordered the writ to issue.
So; in this case, it appears from the record that the only reason why this application was denied was based upon the fact that the contract of employment with the contesting attorneys was coupled with an interest, and this interest was that (1) they had a right to have the money of the estate pass through their hands; (2) that they had not yet been paid their fees.
The first of these propositions is not involved in this proceeding. The second is untenable for the reasons above stated. (Muth v. Goddard, 28 Mont. 231, 72 Pac. 621; Matter of Prospect Avenue, 85 Hun. 257, 1 N. Y. Ann. Cas. 347, 32 N. Y Supp. 1013; Matter of Mitchell et al., 9 N. Y. Ann. Cas. 224, 67 N. Y. Supp. 961; Hunt v. Bousmanier's Adm'rs, 8 Wheat. 174, 5 L. Ed. 589.)
We therefore recommend that the peremptory writ of mandate be issued as prayed for.
Por the reasons stated in the foregoing opinion, it is ordered that the peremptory writ of mandate issue as prayed.