Cowern v. Nelson

Decision Date05 January 1940
Docket Number32273.
Citation290 N.W. 795,207 Minn. 642
PartiesCOWERN et al. v. NELSON.
CourtMinnesota Supreme Court

Reargument Denied March 29, 1940.

Appeal from District Court, Ramsey County; Clayton Parks, Judge.

Action by Joseph F. Cowern and others against Frederick E. Nelson for an injunction restraining the defendant from performing certain acts which were alleged to be the unauthorized practice of law. From the judgment granting an injunction the defendant appeals.

Injunction modified.

A real estate agent acting as broker or agent for one of parties to sale or trade or lease of property or to a loan thereon would not be enjoined from drawing or assisting in drawing, without charge, papers incident to such transaction, but would be enjoined from making a charge therefor. Mason's Minn.St.Supp.1938, § 5687-1(c).

Syllabus by the Court .

The judicial branch of the state government, as a matter of comity and for the reasons stated in the opinion, accepts the legislative declaration of public policy relative to the unauthorized practice of law contained in L.1931, c. 114 insofar as it relates to the drafting by brokers, in transactions involving the sale, trade or leasing of property or a loan thereon where they represent the parties or a party thereto, of instruments incident to such transactions where no charge is made for drafting such instruments; the making of a charge therefor is excluded from such acceptance and is disapproved. The injunction granted below is modified accordingly.

Briggs & Briggs, of St. Paul (Oppenheimer, Dickson, Hodgson, Brown & Donnelly, of St. Paul, Herbert T. Park, of Minneapolis, Streissguth & Gislason, of New Ulm, and MacChesney, Becker & Wells, and Nathan William MacChesney, all of Chicago, Ill., of counsel), for appellant.

Stephen Schmitt, of St. Paul, for respondents.

Thomas Tallakson, Stanley B. Houck, and E. J. Loring, Chairman, all of Minneapolis, for Court Commission on Unauthorized Practice of the Law, Fourth Judicial District, amici curiae.

Oppenheimer, Dickson, Hodgson, Brown & Donnelly, of St. Paul, for St. Paul Real Estate Board and Duluth Board of Realtors, Herbert T. Park, of Minneapolis, for Minneapolis Real Estate Board, Streissguth & Gislason, of New Ulm, for Minnesota State Realty Association, and MacChesney, Becker & Wells, of Chicago, Ill., for National Association of Real Estate Boards, amici curiae.

LORING, Justice.

This is an appeal from a judgment restraining the defendant from performing certain acts for other held by the trial court to be the unauthorized practice of law and particularly from preparing, drawing or selecting for others purchase money contracts, contracts for deeds, leases, notes, mortgages, chattel mortgages, bills of sale, deeds, assignments, satisfactions, and any other instruments of conveyance or legal documents either for or without the payment of a fee and from advising others as to the instruments to be used or the legality and legal effect of such instruments, or as to their rights thereunder. Excepted from the injunction was the preparation of instruments concerning property which the defendant owned or in which he was acquiring an interest.

The plaintiffs in the action were respectively the chairman of the committee on practice of law of the Minnesota State Bar Association and the Secretary of the Committee on the Practice of Law of the Ramsey County Bar Association. They brought the action for themselves, the members of the State and Ramsey County Bar Associations and all other attorneys at law, the public and courts of the state of Minnesota. It was alleged in the complaint that the defendant is not a lawyer and that he now is and for many years has been engaged in the real estate business in the city of St. Paul; that notwithstanding his not being admitted to the bar the defendant has for many years prepared and drawn, and will in the future unless restrained regularly and customarily prepare and draw, sometimes for a fee and at other times without a fee, contracts and other instruments such as those described in the injunction; that the defendant in the preparation of such instruments was and is at times acting as broker or agent for one or both of the parties to a sale, trade, or lease of property, or to a loan, while at other times he prepares and draws such instruments while acting for others in matters unrelated to his real estate business. It is further alleged that the instruments mentioned were those commonly used by the legal profession in connection with various transactions, including the transfer or encumbering of real and personal property. It was alleged that he did not do these acts as a copyist, scrivener or clerk at the direction of an attorney at law but that he personally selected the form of instrument, determined its suitability and adaptability to the requirements of the transaction and advised the interested parties as to the legality and legal effect of the instrument or instruments drawn and of their rights thereunder and when and where the same should be filed and the legal effect of such filing.

In his answer the defendant admitted all these allegations and alleged that they were authorized by Laws 1931, c. 114, § 1(c), which appears as section...

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