Denny v. Commonwealth
| Decision Date | 01 May 1917 |
| Parties | DENNY v. COMMONWEALTH. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Muhlenberg County.
Proceedings by the Commonwealth of Kentucky, etc., against C. A. Denny. From a judgment suspending the defendant from practice as an attorney at law for 12 months, he appeals. Affirmed.
C. A Denny, of Greenville, for appellant.
M. M Logan, Atty. Gen., and O. S. Hogan, Asst. Atty. Gen., for the Commonwealth.
This is an appeal by C. A. Denny, an attorney at law, from a judgment of the Muhlenberg circuit court, suspending him from practice for 12 months for a failure to pay over on demand money which he had collected for a client. Briefly stated, the facts are as follows:
On December 8, 1913, the Louisville Credit Men's Adjustment Bureau of Louisville sent to Denny for collection a claim of Laib Company against W. L. Dean & Co. for $27.67. The claim was sent under the terms of minimum fee of two-thirds of $5 if collected by suit. Denny brought suit on the claim, and the proceeds of the judgment, after payment of the costs were turned over to him by the sheriff of Muhlenberg county. After several demands had been made on Denny for the money a representative of Laib Company called on Denny on October 9, 1915, and received from him a check for $25.43, which was not paid.
The proceeding was begun by the filing of the affidavit of Charles Fitzgerald, an attorney, in which he set out the foregoing facts and asked for a rule against Denny to show cause why he should not be suspended from practice. His statement of facts was supported by the affidavits of Phil F. Laib, a member of the firm of Laib Company, and E. B. Strube, a traveling salesman for Laib Company. The caption of the proceeding was as follows:
"In the Muhlenberg Circuit Court.
State of Kentucky, Muhlenberg County.
In the Matter of C. A. Denny, Attorney at Law."
Thereupon the attorney for the commonwealth asked for a rule against Denny. The motion was granted, and a rule in the name of "Commonwealth of Kentucky, on relation Charles Fitzgerald, The Louisville Credit Men's Adjustment Bureau, Laib Company, and Phil F. Laib, v. C. A. Denny," addressed to the sheriff of Muhlenberg county, was issued, directing the defendant to show cause why he should not be suspended from the practice of the law for a period of 12 months and until the account should be settled. Denny then filed a response, denying the material allegations of the information on which the rule was based, and pleading, in substance, that his failure to turn over the money was due to a disagreement between him and Laib Company in regard to the payment of certain costs and the amount of his fee, and his check drawn in favor of Laib Company on October 9, 1915, was given with the express understanding that it was not to be presented for payment until the matters in dispute had been adjusted. Under these circumstances he made no arrangements to meet the check, and, even if he had been notified of its presentation, he would have directed that it be returned. On January 5, 1916, he wrote Laib Company directing them to draw on him for the amount of $27.43, including the costs. On January 7, 1916, Laib Company made draft for the above sum, accompanied by a letter that the settlement was satisfactory. The letter and draft reached Greenville on Saturday, January 8, 1916, but respondent was not then at home. Immediately upon the opening of the bank on the morning of January 10, 1916, he paid the draft in question. On January 14, 1916, and after the foregoing response had been filed, Denny filed a written motion, supported by his affidavit, asking the presiding judge to vacate the bench. This motion was overruled. Whereupon Denny's motion to withdraw his response theretofore filed was sustained. Denny then filed a special and general demurrer, both of which were overruled. Thereafter his motion to require the commonwealth to elect in whose name it would prosecute the action, as well as his motions to quash and dismiss the proceeding, were also overruled. Thereupon he filed a response similar in effect to the one which he had withdrawn. The commonwealth filed a demurrer and a reply to the response. The case was then submitted on the record, and judgment rendered as above indicated.
1. The first error relied on for a reversal is the refusal of the trial judge to vacate the bench. In support of his motion appellant filed an affidavit, stating facts claiming to show both personal and political bias and hostility towards the appellant. In view of the conclusion of the court, we deem it unnecessary to set out the affidavit or to pass on its sufficiency for the purpose for which it was filed. It is sufficient to say that we have uniformly ruled that objection to the trial judge is a question of jurisdiction, and to be available must be made before an appearance to the merits of the action, or the submission of preliminary motions by either party preparatory to a trial. German Insurance Company v. Landram, 88 Ky. 433, 11 S.W. 367, 592, 10 Ky. Law Rep. 1039; Massie v. Commonwealth, 93 Ky. 590, 20 S.W. 704, 14 Ky. Law Rep. 564; French v. Commonwealth, 97 S.W. 427, 30 Ky. Law Rep. 98; Tolliver v. Commonwealth, 165 Ky. 312, 176 S.W. 1190. Here the motion and affidavit were filed after appellant's response to the merits. Therefore his motion came too late, and the fact that he was thereafter permitted to withdraw his response did not restore his right to insist on the motion.
2. The ground of the special demurrer is that the affidavit or alleged information on which the prosecution was based did not proceed in the name of any party, and was therefore insufficient, and that there was a defect of parties in the rule itself because the proceeding was in the name of the commonwealth. We do not regard it as material in a case of this kind that the information on which the proceeding is based does not proceed in the name of the aggrieved client, or does not comply with the strict rules of pleading with reference to the caption. The information, if it may be called such, is merely the foundation of the subsequent proceeding, and its sole purpose is to bring to the attention of the court and the attorney for the commonwealth the facts, so that they may determine whether the case is one calling for further action.
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Trask, In re
...he may remit to his client all over and above the disputed part, and thus avoid any suggestion of bad faith. * * *' Denny v. Commonwealth, 175 Ky. 357, 194 S.W. 330, 333. In extending the argument that the record reveals only a dispute over a fee, respondent now urges that he was entitled, ......
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In re Williams, 49.
...Ex parte Wall, 107 U.S. 265, 2 S.Ct. 569, 27 L.Ed. 552; Peters v. State Bar of California, 219 Cal. 218, 26 P.2d 19; Denny v. Commonwealth, 175 Ky. 357, 194 S.W. 330; Wilhelm's Case, 269 Pa. 416, 112 A. 560; In re West, supra; In re Burr, 9 Wheat. 529, 6 L.Ed. 152; 7 C.J.S., Attorney and Cl......
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Neace v. Commonwealth
...an appearance to the merits of the action, or the submission of preliminary motions by either party preparatory to a trial. Denny v. Com., 175 Ky. 357, 194 S.W. 330. The was not seasonably made in this case. There had been an appearance to the merits, and preliminary motions and steps had b......
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State v. Burgers
...pending appeal. Standard of Review [¶ 8.] An objection to a designated judge raises a question of jurisdiction. Denny v. Commonwealth, 175 Ky. 357, 194 S.W. 330, 332 (1917); see J.H. Cooper, Annotation, Time for Asserting Disqualification of Judge, and Waiver of Disqualification, 73 A.L.R.2......