Depew v. Wichita Retail Credit Ass'n, Inc.

• Decision Date: 09 March 1935
• Docket Number: 32091.
• Citation: 141 Kan. 481,42 P.2d 214
• Parties: DEPEW et al. v. WICHITA RETAIL CREDIT ASS'N, Inc.
• Court: Kansas Supreme Court

42 P.2d 214

141 Kan. 481

DEPEW et al. v. WICHITA RETAIL CREDIT ASS'N, Inc.

No. 32091.

Supreme Court of Kansas

March 9, 1935

Syllabus by the Court.

Injunction held proper remedy to restrain corporation from unlawful practice of law.

Attorneys at law, as officers of court, suing for themselves and other practicing attorneys in vicinity, held proper parties plaintiff in action to enjoin corporation from unlawful practice of law in city of plaintiff's residence.

Where licensed attorneys at law, on behalf of themselves and all other practicing attorneys of the vicinity, bring an action in the district court to enjoin a corporation from the illegal practice of law in that vicinity, and the defendant files a demurrer to the petition, which is overruled by the trial court, it is held on appeal and review (1) that injunction is a proper remedy to restrain a corporation from the unlawful practice of law; (2) that attorneys at law as officers of the court, suing on behalf of themselves and other practicing attorneys of their vicinity, are proper parties plaintiff in such an action to enjoin a corporation from the unlawful practice of law; and (3) that there was no error in the overruling of the demurrer of the defendant to such petition.

Appeal from District Court, Sedgwick County, Division No. 4; Isaac N. Williams Judge.

Action by Claude I. Depew and others against the Wichita Retail Credit Association, Inc. From an order overruling its motions to strike out parts of the petition and demurrer to the petition, defendant appeals.

SMITH and HUTCHISON, JJ., dissenting

C. H Brooks, Willard Brooks, Howard T. Fleeson, Fred W. Aley, Carl G. Tebbe, Wayne Coulson, Paul J. Wall, Carl I. Winsor, and John E. Boyer, all of Wichita, for appellant.

H. W Hart, A. M. Cowan, and George Siefkin, all of Wichita, for appellees.

HUTCHISON Justice.

This is an action brought in the district court of Sedgwick county Kan., by eight duly licensed practicing attorneys at law of the city of Wichita, Kan., on behalf of themselves and all other practicing attorneys of the city of Wichita, to enjoin the Wichita Retail Credit Association, Inc., from the illegal practice of law.

The defendant filed a motion to strike out several allegations of the petition and also a demurrer to the petition, both of which were by the trial court overruled, from which rulings the defendant appeals, insisting: (1) That the trial court had no jurisdiction of the person of the defendant nor the subject-matter of the action; (2) that the plaintiffs had no legal capacity to sue; (3) that several causes of action were improperly joined; and (4) that the petition did not state facts sufficient to constitute a cause of action against the defendant. The errors upon which the appellant relies most strongly concern the overruling of the demurrer to the petition, in the review of which we shall of course consider the allegations of the petition as being true.

There are two questions seriously involved: (1) Is injunction a proper remedy to prevent a corporation from engaging in the unlawful practice of law? and (2) are individual attorneys, suing on behalf of themselves and all other practicing attorneys of the city of Wichita, proper parties plaintiff in an action to enjoin a corporation from engaging in the unlawful practice of law?

Appellant cites many Kansas decisions to the effect that courts of equity will not entertain jurisdiction of cases where there is an adequate remedy by an action at law, as it claims there is here by an action in quo warranto, quoting from the decision in the case of Jordan v. Updegraff, McCahon, 103, the following on page 108: "The principle in jurisprudence, 'That a court of chancery will not entertain jurisdiction of a case, to exert its equitable powers of relief, when the complainant can have an adequate remedy by an action at law,' is too well established to admit of a doubt."

Also quoting the first syllabus of Neeland v. State ex rel., 39 Kan. 154, 18 P. 165: "Injunction is not the proper remedy to determine the title to an office, but quo warranto is." See, also, Treat v. Wilson, 4 Kan. App. 586, 46 P. 322.

Appellant also cites Baxter Telephone Co. v. Telephone Association, 94 Kan. 159, 146 P. 324, L.R.A. 1916B, 1083, which relates, not only to the question of the remedy by injunction, but also to the right of a licensed telephone company to exclude from its competition another telephone company which does not possess a license, and it was held that the plaintiff was not entitled to an injunction. It is proper and best to consider in connection with this decision another and more recent case cited by appellees, viz., Wichita Transportation Co. v. People's Taxicab Co., 140 Kan. 40, 34 P.2d 550, 94 A.L.R. 771, where a street car company was held to come under the exception noted in the Telephone Company Case, supra, and be entitled to an injunction to avoid what might eventually lead to bankruptcy of the plaintiff. The exception, noted on page 163 of 94 Kan., 146 P. 324, 326, of the opinion in the Telephone Case, is as follows: "A. private plaintiff, who is likely to be injured in some special manner, or whose situation is peculiarly affected by the exercise of a usurped power could maintain the action, but no such case is presented here."

Both these cases have to do with the question of parties plaintiff as well as the remedy.

Both parties refer to the case of State ex rel. v. Perkins, 138 Kan. 899, 28 P.2d 765, which is all important here because it involved the authority of the party defendant to practice law in this state. It was an original action in quo warranto, brought in the name of the state on relation of the Attorney General, but, in discussing the different methods of bringing actions to question the right of defendants to practice law, including contempt, injunction, and quo warranto, it was said in the opinion on page 906 of 138 Kan., 28 P.2d 765, 769, that: "The form in which the matter is called to the court's attention is not so important. Since the court has jurisdiction of the subject-matter, any recognized procedure by which a charge or complaint is entertained, and the one charged is given proper notice, and in which there is a full hearing fairly conducted, would appear to be sufficient."

Many of the cases cited by appellant from other jurisdictions are not fully applicable to the case at bar, because they hold injunction is not a proper remedy, for the reason there is in those states an adequate remedy at law, in that the unlawful practice is by statute made a misdemeanor. Similar laws exist in this state as to a number of professions, but not as to the practice of law.

In line with the exception stated in the Telephone Case, supra, and the decision in the recent Street Car Case (Wichita Transp. Co. v. People's Taxicab Co.), supra, it is interesting to note the very decided recent modification of the earlier exceedingly strict rule as to the use of injunction as an equitable remedy. In 32 C. J. 34, it is said: "While it has been said that the writ of injunction will not be awarded in new and doubtful cases not coming within the well established principles of equity, yet the absence of precedent, although not to be overlooked entirely, does not of itself determine questions of jurisdiction. It is not a fatal objection that the use of the writ for the particular purpose for which it is sought is novel. Court may amplify remedies and apply rules and general principles for the advancement of substantial justice. If this was not so, and courts were confined to particular precedents, there would be no power to grant relief in new cases constantly occurring."

In the Law of Injunctions by Lewis & Spelling, pp. 2 and 3, it is said:

"In numerous judicial opinions are to be found recognitions of the expansion which has been found necessary in the use of injunctive processes to keep step with the onward march of civilization and meet man's manifold needs. Mr. Justice Brewer, while sitting in the Circuit Court for Nebraska, in an unreported case, expressed a view which has been often quoted, that 'the powers of a court of equity are as vast, and its processes and procedure as elastic, as all the changing emergencies of increasingly complex business relations and the protection of rights can command.' ***

"That the remedy by injunction has become more common and therefore more prominent in modern or recent times is doubtless true, and this grows out of the ever changing conditions and evolutions in business incident to modern civilization. That the courts adapt themselves to these changing conditions and afford relief, thus preserving the rights of the individual citizen from combinations of the many, is a tribute to the conservatism and wisdom of both bench and bar."

It is also interesting to note in chapter 21 of our Revised Statutes, being that concerning crimes and punishments, how many provisions there have been enacted since the year 1900 authorizing the use of the remedy of injunction to prevent the commission of crimes, for which there are definite and specific punishments prescribed.

As to the legal capacity of the plaintiffs to sue and maintain this action, they allege in their petition that they are all residents of Wichita, Kan., and are duly licensed practicing attorneys at law by virtue of franchises granted to them by the Supreme Court of the state of Kansas and the United States courts, maintaining their offices at Wichita, Kan that they have been practicing law in said city for a number of years; that they and each of them have built up a valuable practice; that all of them are members of the Wichita Bar Association and comprise a committee appointed by said association to take...