The State ex rel. Larew v. Sale

• Decision Date: 24 May 1905
• Citation: 87 S.W. 967,188 Mo. 493
• Parties: THE STATE ex rel. LAREW v. SALE, Judge
• Court: Missouri Supreme Court

87 S.W. 967

188 Mo. 493

THE STATE ex rel. LAREW v. SALE, Judge

Supreme Court of Missouri, First Division

May 24, 1905

Writ awarded.

King & King for relator.

Jacob Klein and Charles S. Reber for respondent.

(1) If the facts in relation to said William P. Larew set out in the suggestions presented to the circuit court of the city of St Louis by the Bar Association of that city are such as to warrant said court taking any action whatever in relation to the said Larew, then this writ of prohibition cannot go as prayed for. State ex rel. v. Wood, 155 Mo. 445; Schubach v. McDonald, 179 Mo. 182; Forsee v Gates, 89 Mo.App. 584. (2) The facts so suggested to that court would, if proven to its satisfaction, justify action by it: First, under the authority conferred by the statutes of the State of Missouri. In re Kirby, 10 So. Dak. 331; R.S. 1899, secs. 2698, 2699, 2702, 2703, 2705 2718, 4929. Second, under the power inherent at the common law in all courts of record, to maintain the integrity of the membership of their respective bars. Bar Ass'n v Greenwood, 168 Mass. 183; Re Delano, 58 N.H. 5; Ex parte Bramsall, Cowp. 825; In re Davies, 93 Pa. 120; State ex rel. v. Winton, 11 Ore. 456; In re Weare, Court of Appeals, 1893, 2 Q. B. 437; Penobscot Bar v. Kimball, 64 Me. 154; State ex rel. v. Mullins, 129 Mo. 237; State ex rel. v. Harber, 129 Mo. 281; State ex rel. v. Fort, 178 Mo. 520.

OPINION

Prohibition.

VALLIANT J.

Relator is a licensed attorney at law, authorized to practice in the courts of this State. On June 29, 1904, he was convicted in the circuit court of the city of St. Louis of the crime of embezzlement, and sentenced to a term of two years in the penitentiary.

In due time, on his application, the circuit court granted him an appeal with stay of proceedings, and admitted him to bail on his recognizance with sureties. That appeal is now pending in this court. In January, 1905, a committee of the Bar Association of St. Louis, a corporation having for its object, among others, "the maintenance of the honor and dignity of the profession of the law, the promotion of legal science and the administration of justice," instituted proceedings in the circuit court, the object of which was the suspension of the relator from the practice of his profession and his removal from the bar of this State. The charge preferred against him was that he had been convicted of embezzlement and sentenced to a term of two years in the penitentiary. The petition in that case also stated that he had appealed from the judgment and that the appeal was pending in the Supreme Court. On the filing of that petition the circuit court entered of record an order that the relator appear at a certain time and show cause "why he should not be suspended from the practice of his profession and be removed from the bar of this State."

On the petition of the relator filed in this court, praying that a writ of prohibition issue directed to the judge of the circuit court having charge of the disbarment suit, prohibiting him from proceeding in the matter pending the appeal in the criminal case, a preliminary rule was issued, to which return has been made, in which the facts above stated are admitted, and in which it is also stated that the petition in the disbarment case did not ask nor did the respondent propose to decree the final disbarment of the relator pending the appeal, but only, if the proof should justify it, to suspend him from practice for the time being, the suspension to end in case the sentence in the criminal case should be reversed and to become a permanent disbarment only in case it should be affirmed. The return also sets forth certain views of the law which the respondent is advised are applicable to the case.

The cause is submitted for judgment on the pleadings.

I. The first proposition contained in the brief for respondent is that if under the facts stated, the circuit court had jurisdiction to render any judgment at all in the case, the writ of prohibition should not issue. That is in the main a correct proposition. [State ex rel. v. Wood, 155 Mo. 425, 56 S.W. 474.] The fact that it would be error for the court to render a certain judgment which the relator fears it is about to render is not in itself a sufficient reason for the issuance of such a writ. The presumption is that the court will not render a wrong judgment in a case of which it has jurisdiction, and that it will not render any judgment at all except a judgment of dismissal in a case of which it has no jurisdiction. Ordinarily, therefore, even when the petition in the circuit court states no case within its jurisdiction, until the court takes some action indicating a purpose to entertain jurisdiction, a writ of prohibition will not issue, because the presumption must be indulged that when the case comes up for action the circuit court will dispose of it on the ground that it has no jurisdiction. And it is not every case in which the court erroneously decides that it has jurisdiction that calls for a writ of prohibition. The writ of prohibition, in spite of the frequent use to which it has in late years been put, is still an extraordinary writ and issues only when sound judicial discretion commends it; in that view it is not a writ of right.

On the other hand, whilst the main office of the writ is to keep the court to which it is addressed within the bounds of its jurisdiction, yet, in the exercise of the discretion above referred to, the writ is sometimes used to keep a court from doing what it has no lawful authority to do in a case the general nature of which is within its jurisdiction. This court in reference to an order of a circuit court made in a contested election case per Barclay, J., said: "If the court had no lawful authority to make it, that is to say, if the order was beyond the power of the court in the pending election contest, the writ of prohibition would undoubtedly lie, notwithstanding the court might have general jurisdiction over election contests, and hence over the subject-matter of the proceeding. For it is settled law that prohibition may be used (upon a proper showing) to keep a court within the limits of its lawful authority in a given case, no less than to prevent cognizance of causes not committed by law to its jurisdiction." [State ex rel. v. Slover, 126 Mo. 652, 655, 29 S.W. 718.]

In 16 Ency. Pl. and Pr., p. 1111, it is said: "The writ is not confined to cases where the lower court has no jurisdiction at all, but extends to cases where the court, having jurisdiction of the suit, exceeds its legitimate powers, as, for example, where a court exceeds its powers by appointing a receiver improperly." In support of which, among other authorities cited, is, Railroad v. Wear, 135 Mo. 230, 36 S.W. 357, 36 S.W. 658.

But in the use of this writ care must be taken not to allow it to be employed as a mere substitute for an appeal or writ of error; the danger of such misuse is avoided in the exercise of the discretion above mentioned.

It is therefore, not a conclusive answer to the relator's petition to say that the circuit court has jurisdiction of disbarment proceedings, because if the record shows that the court has done or is about to do something that it has no lawful power to do in the given case, the writ is not improperly invoked. That is just what ...