Attorney Gen. v. Lane

• Decision Date: 06 June 1932
• Docket Number: Motion No. 400.
• Citation: 243 N.W. 6,259 Mich. 283
• Parties: ATTORNEY GENERAL v. LANE.
• Court: Michigan Supreme Court

259 Mich. 283

243 N.W. 6

ATTORNEY GENERAL

v.LANE.

Motion No. 400.

Supreme Court of Michigan.

June 6, 1932.

Appeal from Circuit Court, Wayne County; Jesse H. Root, George W. Sample, and Fred W. George, Judges.

Disciplinary proceedings by the Attorney General, against James F. Lane, an attorney at law. To review an order suspending defendant from practice for three years, he appeals.

Affirmed.

Argued before the Entire Bench, except BUTZEL, J.

James F. Lane, of Detroit, in pro. per.

Paul W. Voorhies, Atty. Gen., and John H. McPherson, Asst. Atty. Gen., for appellee.

WIEST, J.

Three circuit judges, sitting en banc, heard evidence in support of charges preferred by the Attorney General against defendant, found him guilty of unprofessional conduct as an attorney at law, and suspended him from practice for the period of three years. Defendant reviews by appeal.

The nature of the review herein, under the statute and court rules, whether in the nature of certiorari or a hearing de novo, must first be determined. Defendant and the Attorney General both contend that the review here is de novo. We do not so hold.

Court rule No. 55, effective January 1, 1931, provides: ‘Every order, determination, decision, sentence, action, judgment or decree of a judicial or quasi-judicial nature, rendered in any civil proceeding by any court, officer or tribunal (whether administrative or judicial) if reviewable in a court of record by writ of error, appeal, case made, certiorari, mandamus, prohibition, or in any other manner (except by the commencement of an action and the filing of pleadings in such court of record), shall be reviewed by notice of appeal, and such review shall be designated an appeal. This rule shall not be deemed to restrict or enlarge the right of review provided by law, nor to make any order, determination, decision, sentence, action, judgment or decree reviewable which otherwise would not be reviewable.’

This rule terms all former methods of review appeals. Right of review is statutory, but procedure is subject to court rules.

At the time the rule was adopted, the statute (C. L. 1929, § 13585) provided for review by writ of certiorari under the regular rules of this court. The statute was amended by Act No. 171, Public Acts 1931, and at the time of defendant's suspension provided, and now provides: ‘Any person feeling himself aggrieved by the determination of the judges hearing any proceedings for disbarment or reinstatement, may have the proceedings reviewed by the supreme court of this state on application thereto by a motion of appeal under the regular rules of said court.’

‘Motion of appeal’ must mean application for and allowance of an appeal. Our rule has not destroyed former writs in terming them appeals. The Legislature evidently endeavored to make the amendment to the statute speak the language of our mentioned rule. The rule relating to appeals, however, applies one general term to several writs of review, inclusive of certiorari. It is true that, by the amendment, the Legislature, in permitting review, departed from former specific designation of certiorari and accepted the omnibus term ‘appeal,’ as employed in our rule, but this does not indicate a review de novo. The statute permits an ‘appeal under the regular rules of said court,’ and the regular rules term review by certiorari an appeal.

Our omnibus nomenclature of appeals leads us now to look through the verbiage of the statute and rule and term the review an appeal in the nature of a writ of certiorari.

Review in this case is well stated as follows in Matter of Goodman, 199 N. Y. 143, 92 N. E. 211: ‘In a proceeding of this character the power of review ends in this court when it appears that the proceeding has been instituted and conducted in accordance with the statutes and rules authorizing it; that no substantial legal right of the accused has been violated; that no rpejudical error has been committed in the reception or exclusion of testimony; and that there is some evidence to sustain the findings upon which the order is based. Further we cannot go, for the power and discretion of the Appellate Division in the infliction of punishment when guilt is established are not subject to review in this court.’

If we hear the case de...