Curry v. Dahlberg

• Decision Date: 09 December 1937
• Docket Number: No. 34214.,34214.
• Citation: 112 S.W.2d 345
• Parties: CURRY v. DAHLBERG.
• Court: Missouri Supreme Court

112 S.W.2d 345

CURRY v. DAHLBERG.

No. 34214.

Supreme Court of Missouri, in Banc.

December 9, 1937.

Appeal from St. Louis Circuit Court; James F. Green, Judge.

On motion for rehearing.

Motion overruled.

For original opinion, see 110 S.W.2d 742.

Burnett, Stern & Liberman, Samuel H. Liberman and Robert L. Aronson, all of St. Louis, for appellant.

Ewing, Ewing & Ewing, of Nevada, for respondent.

HYDE, Commissioner.

Many questions urged on motion for rehearing have been fully discussed in the opinion, but it is contended that the issue of illegality of the contract sued on should not have been raised by the court sua sponte, because it was an affirmative defense waived by failure to state it in the answer, and because the case was a purely private controversy in which the public policy of practice of law by laymen was not presented by the pleadings. A sufficient answer, even if the broader aspects of the public interest in the regulation of the practice of law be disregarded, is that the illegality of the contract was affirmatively shown by the facts stated in plaintiff's fourth amended petition, and therefore on the face of the record proper it appears that plaintiff was not entitled to the relief asked. See 6 R.C.L. 818, § 215; Scott v. Brown, [1892] 2 Q.B.Div. 724; Shohoney v. Quincy, O. & K. C. R. Co., 231 Mo. 131, loc. cit. 147, 132 S.W. 1059, Ann.Cas.1912A, 1143; Oscanyan v. Winchester Arms Co., 103 U.S. 261, 26 L.Ed. 539; Noonan v. Gilbert, 63 App.D.C. 30, 68 F.2d 775; Waychoff v. Waychoff, 309 Pa. 300, 163 A. 670, 86 A.L.R. 190. It is unfortunate that apparently plaintiff's creditors are the real losers in this case. They naturally and properly sought repayment out of funds which they had reason to believe might come into his possession. Nevertheless, their claim is only based on assignment from him and it can rise no higher than its source.

In the matter of public interest, it can make no difference, as plaintiff suggests, that in Clark v. Austin, Mo.Sup., 101 S.W.2d 977, the question of unlawful practice was raised and brought before the court by action of the court's advisory committee. Certainly, if it is proper for the court to appoint an advisory committee to investigate and raise such questions concerning prevention of unlawful practice in cases not before this court, then surely it is proper for this court to raise such a question in a case pending before it where unlawful practice and unlawful practices constitute the basis for the relief asked. To do otherwise would be to punish one violation of the law and reward another. This court believes that it has the responsibility and the duty to concern itself both with regard to proper conduct of licensed practitioners and with unlawful practice of law by all others to the end that legal services required by the public, and essential to the administration of justice, will be rendered by those who have been found by investigation to be properly prepared to do so by conforming to strict educational standards, and who demonstrate that they have the character to conform to higher standards of ethical conduct than are ordinarily considered necessary in business relations which do not involve the same fiduciary and confidential relationships. To enforce such standards of ability, knowledge, and conduct, it is necessary in the public interest to prevent those who will not or cannot comply with them from engaging in competition for legal work with those who must and do observe them, especially when, as here, such employment is obtained by advertising and soliciting rather than by being sought out because of known integrity and ability. See in the Public Interest (Clark), 2 Mo. Law Review 161. One of the most effective means of preventing encroachment by such unauthorized practitioners is to prevent them from profiting by such "chiseling" activities as "high pressure" solicitation for legal business. No doubt our Legislature had this in mind when it passed section 11694, R.S.1929, Mo.St.Ann. § 11694, p. 622, which not only made such acts a misdemeanor subject to a fine, but also provided for recovery from an unlawful practitioner of treble the amount collected by him for his compensation.

Plaintiff also contends that his contract should be enforced because it was made before the Legislature enacted sections 11692-11694, R.S.1929, Mo.St.Ann. §§ 11692-11694, pp. 621, 622. These sections are based upon the police power of the...