Emmons v. Smitt, 4226.

• Decision Date: 11 October 1944
• Docket Number: No. 4226.,4226.
• Citation: 58 F. Supp. 869
• Parties: EMMONS v. SMITT et al.
• Court: U.S. District Court — Western District of Michigan

58 F. Supp. 869

EMMONS v. SMITT et al.

No. 4226.

District Court, E. D. Michigan, S. D.

October 11, 1944.

John J. Sloan, of Detroit, Mich. (A. W. Sempliner, Hugh Francis, and Lawrence Rothenberg, all of Detroit, Mich., of counsel), for plaintiff.

George E. Brand, of Detroit, Mich., for defendants.

PICARD, District Judge.

Hearing on motion to dismiss plaintiff's action and on order to show cause why preliminary injunction should not issue.

Upon filing of the complaint an ex parte order issued restraining defendants (and requiring them to show cause why a preliminary injunction should not issue enjoining them) from continuing with pending State Bar proceedings against plaintiff.¹ Defendants, appearing specially, moved for dismissal on five points:

1. The court herein has no jurisdiction over the subject matter of plaintiff's alleged cause of action;

2. Plaintiff's suit herein is not within the jurisdiction of the court;

3. The court herein has no power to grant the, or any of the, relief prayed for in plaintiff's complaint;

4. The court herein has no jurisdiction over defendants or any of them; and

5. Plaintiff has failed to state a claim upon which relief can be granted.

Because of the natural interest of Michigan's bench and bar and developed attention of the public in the above matter, this court believes that in rendering this opinion we should clarify the scope of issues involved in clear, precise and direct language, particularly since we find that in this case there has been somewhat of a general tendency to read some things into opinions of several courts which are not there. It is believed further that because the result interprets some phases of the relationship existing between the highest court of Michigan and the federal court, it becomes important to review the powers of a federal court concerning the questions at hand.

At the outset we desire to stress this important fact: We do not, in this opinion, decide whether plaintiff, Harold H. Emmons, was or was not guilty of unethical practices as a lawyer. The inquiry before us is simply: Has this court jurisdiction to try the issues presented by the pleadings which at this point consists of a complaint, a motion to dismiss, certain affidavits and exhibits and a motion to expunge those affidavits and exhibits from the record? No other question is before us. If we do have jurisdiction then the motion to dismiss should be denied and defendants ordered to plead. If jurisdiction is lacking, then our duty to dismiss the petition is mandatory. 28 U.S. C.A. § 80.

In considering the issues, we are first confronted with defendant's contention that the action should be dismissed on legal grounds appearing on the face of the complaint as clarified by affidavits. On the other hand, plaintiff insists that, no answer being filed, we must take everything in the complaint as true and that affidavits should not be considered upon a motion to dismiss.

Both claims — in a limited sense — are correct and within the authorities. In Boro Hall Corporation v. General Motors Corp., D.C., 37 F.Supp. 999, 1000, we learn that: "a controversy has existed as to this from the very inception of Rule 12(b), Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c."

But in Gallup v. Caldwell, 3 Cir., 120 F.2d 90, 92, it is stated: "We are met at the outset by the question whether it was proper for the court below to make a preliminary investigation, which carried it outside of the pleadings, as to the plaintiff's stock ownership. * * * If record ownership is a prerequisite to the right to bring this action, then it is expedient that the point be decided preliminarily. * * * IN SO HOLDING, WE DO NOT INDICATE THAT DISPUTED QUESTIONS OF FACT INVOLVED IN THE MERITS OF CLAIM OR DEFENSE MAY NECESSARILY BE FOUGHT OUT AS PRELIMINARY ISSUES RAISED UPON MOTIONS. THE AFFIDAVITS FILED BY THE PARTIES HERE RAISED NO FACT CONTROVERSY, BUT A QUESTION OF LAW." (Capitals ours.)

This latter decision expresses this court's views. We do not believe that affidavits or exhibits filed by defendants herein raise any controversy on the facts. If they do, they are not considered in this opinion. On any question of fact we accept as true statements made in the complaint — but we do not necessarily accept plaintiff's conclusions of law based thereon. Nor do we find it necessary to decide any factual question. On the contrary, we take the complaint as filed, using the affidavits merely to clarify noncontroversial matters referred to and alleged in the bill of compaint, being mindful that if there is no jurisdiction in this court to try the issues we must DISCOVER lack of it and act according to our own motion. Paramino Lumber Company v. Marshall, D.C., 18 F.Supp. 645.

With this background let us analyze the questions presented. In his pleadings — but more in his arguments and briefs — plaintiff contends he has a right to be heard in some court on the Michigan declaratory judgment statute; that the Supreme Court of Michigan denied him this right evidently on the theory that he was "a lawyer", ignoring entirely that he has fundamental rights "as a citizen"; that actually, by its holding, the Supreme Court has impinged upon those rights in violation of the Constitution of the United States; and that he now comes to the federal court by virtue of the authority granted him in the "civil rights" section of the Judicial Code, Title 28 U.S.C.A. § 41, par. 14.

Specifically plaintiff alleges that he has been or is about to be deprived of his property without due process of law (Fifth Amendment); and that by its decision the Supreme Court abridged his privilege as a citizen of the United States by denying him equal protection of the law (Fourteenth Amendment).

On this theory he bases his claim for relief in the federal court from the writ of prohibition granted by the Supreme Court of Michigan in an action started by him in the Ingham County circuit court May 3, 1943, where he — as a citizen — asked for a declaration of his rights under certain decrees in the circuit court for Oakland County and certain orders of the probate court of Wayne County. That ruling (State Bar of Michigan v. Ingham Circuit Judge et al., 307 Mich. 393, 12 N.W.2d 408, prohibited the Ingham Court from interpreting those orders and decrees which plaintiff contends were res judicata of certain matters and thus limited his ability to present a proper defense in the disciplinary proceedings pending before defendants. True he does, in the case at bar, and did, in the Ingham action, question the power of the state bar to exercise decision over his right to practice law not solely on the theory that it has no such power and that he has done no wrong as a lawyer, but if it has such power over him, as such, the acts complained of were done by him as a private citizen, an individual — not subject to review by a bar association. He also lays particular stress upon the fact that, since any citizen would have the right to secure a declaration of rights, his being a lawyer by profession should not result in his having less rights than he would have as a citizen.

This court being more than ordinarily interested by this approach and noting plaintiff's distinction, first made a study of the complaints, particularly as to prayers for relief, to compare what plaintiff had asked in the Ingham court with what he is asking by his present action.

To begin with, we find that in both cases Mr. Emmons describes the history of events that led to his differences with the Michigan State Bar, which are briefly these:

That one Cummings died in 1920, leaving a will that he (Emmons) had drawn in which he was named as one of the executors and one of the trustees of certain charitable trusts therein created; that the Cummings estate was insolvent, and that, in order to save it and if possible to pay its creditors, petitioner arranged to purchase certain of its assets with title in the name of himself and friends; that later the group of which he was a party made several sales of the property so obtained and that his own and his associates' qualifications to give good title were attacked in the courts of Oakland County chiefly on the theory that Emmons as executor could not participate in the sale of the estate's assets to himself; that it was held by Judge Gillespie of Oakland County that he (Emmons) not only had done nothing contrary to ethics while acting as executor of the estate but that he and his associates could and had given good title to the property so sold. Each complaint further recites that his entire purpose in getting this property in his own name was to salvage something for the estate, that during the intervening years he used his own funds, worked hard, incurred personal liabilities and finally turned over to the trust for a crippled children's organization some $400,000 after paying all indebtedness of the estate; that on May 8, 1928, when the estate was closed and the trust created he erroneously reported in his final probate account that he still had one million dollars in assets belonging to said estate which were then to become part of the trust. We direct attention to the words "erroneously reported" in the preceding sentence, since it is Mr. Emmons' claim that it is chiefly because of this "error" that he has been so unfairly and unjustly accused. But regardless of error or misunderstanding plaintiff's position in both cases is that since he had good title to the property, granted by proper orders of the probate court, tested and sustained by decrees of the circuit court of Oakland County, that what he did with those assets from the day he received them was entirely his personal business; that it was in truth a valiant attempt on his part to save for the crippled children's foundation (recipients and beneficiaries of the trust) as much money as he could; and that he actually made an insolvent estate solvent.

Then, he...