Ex parte Cashin

• Decision Date: 06 March 1922
• Docket Number: 22283
• Citation: 128 Miss. 224,90 So. 850
• Court: Mississippi Supreme Court
• Parties: Ex parte CASHIN

90 So. 850

128 Miss. 224

Ex parte CASHIN

No. 22283

Supreme Court of Mississippi

March 6, 1922

1. ATTORNEY AND CLIENT. Citation to respondent giving reasonable notice is sufficient in disbarment proceedings.

In a disbarment proceeding, the statutory requirement (section 3912, Code of 1906 [section 2919, Hemingway's Code]) that all process be issued and signed by the clerk is not applicable; the proceeding being sui generis, and the court already having jurisdiction of its officers, its attorneys, a citation signed by the judge in vacation which gives reasonable notice is sufficient for jurisdiction to adjudge disbarment.

2. ATTORNEY AND CLIENT. Court may prescribe method of procedure in disbarment proceedings.

Where there is no prescribed method of procedure in disbarment, the court has the judicial power to determine the nethod provided always there be given reasonable notice affording opportunity to be heard, and the cause be tried fairly, and without oppression or injustice.

3. ATTORNEY AND CLIENT. Thirty days' notice held to be reasonable and due process in disbarment proceedings.

Thirty days' notice is reasonable, is due process, and a determination of the issue by the judge in disbarment proceedings is the exercise of judicial power, and is not a denial of the right of trial by jury.

HON. S F. DAVIS, Judge.

APPEAL from circuit court of Humphreys county, HON. S. F. DAVIS Judge.

Proceeding in the circuit court for the disbarment of J. M. Cashin, a member of the bar of Humphreys county. Judgment of disbarment was rendered, and J. M. Cashin appeals. Affirmed.

Affirmed.

J. M. Cashin, for appellant.

It is respectfully submitted that the judgment herein is void for lack of jurisdiction of the person of the accused. The proceeding was instituted and the order that I be cited were not made or done by the court upon any information or proceeding of any kind pending in court, but the order was made by the judge in another county in the state, and at a time when the circuit court of Humphreys county was not in session. All this appears from the record.

In proceedings for the suspension of disbarment of an attorney, the practice is for the court, not a judge, to issue a rule or order upon the attorney, reciting the substance of the information or charges against him, and requiring him to show cause why he should not be suspended or disbarred. 4 Cyc. 913, and authorities cited in the notes on that page. By section 992, of the Code of 1906, judges in term time and vacation are authorized to issue or order the issuance of certain writs, but a writ, notice or citation to an attorney in a disbarment proceeding is not among those writs authorized to be issued by judges in vacation.

The powers of judges at Chambers in term and vacation are matters of statutory regulation, or are regulated by rules of court. The general rule upon this subject is that judicial business must be transacted in court, and any transaction of judicial business, out of court must be expressly authorized by statute. 17 Am. & Eng. Enc. of Law (2 Ed.) p. 724.

It is a fundamental principle that courts can exercise judicial functions only at such times and places as are fixed by law, and that the judges of courts can enter no orders in vacation except such as are expressly authorized by statute. Blair v. Reading, 99 Ill. 600.

Judicial acts of a circuit judge at Chambers must be either acts done out of court in a cause pending in court, or acts which the judge is specially authorized by statute to perform out of court. Steeter v. Paton, 7 Mich. 341.

Judge DAVIS' order to me was not in reference to a case then pending in court, and not an order he was authorized by the statute to issue and is therefore entirely void. Strictly judicial powers can only be vested in certain courts named in the constitution. The circuit courts as courts have such powers, but judges out of court merely as judges cannot exercise them. Toledo, etc., R. R. Co. v. Dunlap, 47 Mich. 456; see also, 23 Cyc. 543.

I again ask the attention of the court to the fact that when Judge DAVIS signed the order on July 15, 1921, there was no proceeding pending in the circuit court of Humphreys county, Miss., upon which said order could be based. It is true that the said order recites that said information had been filed in said court, but the record shows that it was not filed until the next day, July 16, 1921, where the conduct of disbarment proceedings is not regulated by the statute, the practice is as stated in the last paragraph on the first page of this brief. State v. Mosher, 103 N.W. 105. See, also, State v. Kirk, 95 Am. Sec. 314. In the case at bar Judge DAVIS not only issued a writ or order himself which he was not authorized by the statute to issue in any event merely as a judge, but issued that order in reference to a matter which was not then pending in any court.

I submit that under the law I was not required to pay any attention to such an order. I did not do so. So far as any authority to bind me by such an order is concerned, he had as well have sent a message by Mr. Jones to come into court and answer the information. I take it that there is no question but that according to law a defendant in any legal proceeding is entitled to the notice prescribed by law; that is to say the notice prescribed by law in that particular proceeding, before his rights can be prejudiced by the judgment of any court. Ex Parte Heyfron, 7 How. 127; Harris v. Connor, 3 S. & M. 87; Sec. 3912, Code of 1906. See opinion of Justice FIELD in Ex Parte Wall, 107 U.S. 306; Re Sittion, 177 P. 555.

In view of the fact which I think is clearly established by the authorities that the court below acquired no jurisdiction in this matter, I respectfully submit that the judgment should be reversed and the proceeding dismissed.

Jessie Jones, for appellee.

In presenting this case to the court, it is probably well to remind the court of the essential nature of disbarment proceedings. This subject is discussed in 6 C. J., sec. 37, page 580. As to the common-law power of courts to disbar attorneys, 6 C. J., page, 582. In pursuance of its authority, the legislature of Mississippi has enacted a statute on this subject. This statute section 223, of the Mississippi Code of 1906, which is as follows: "If any attorney or counselor at law be in default of record, or otherwise guilty of any deceit, malpractice, or misbehavior, or shall wilfully violate his duties, he shall be stricken from the roll and disbarred, and his license revoked by any court in which he may practice; and such person shall never afterward be permitted to act as an attorney or counselor in any court in this state."

In this case we have a judgment of the circuit court, a court which had the right to hear the case, finding the respondent guilty of the conduct denounced in section 223, above quoted. Judgment itself recites all jurisdictional facts, and conclude by disbarring the respondent, which is the only judgment that could be rendered by the court under the section as above quoted, and under the decision of the supreme court of Mississippi in the case of Barber v. State, 72 So. 472.

Appellant relies for reversal of this cause on the ground that the information was presented to the circuit judge at a time when the Humphreys county court was not in session, but while he was holding court in Greenville, Mississippi. See Acts and Legislature with reference to time of holding courts, and citation issued at the same time. His contention being that he has never had any legal notice, and for that reason the court did not acquire jurisdiction of his person and the judgment of disbarment is therefore a nullity. He cites in support of this contention, Blair v. Reading, 99 Ill. 600; Streeter v. Paton, 7 Mich. 341; Ry. Co. v. Dunlap, 47 Mich. 456. None of the above cases involve disbarment proceedings.

In the Mosher case, 103 N.W. 105, next cited by him, the court of its own motion on information received from the grand jury entered an order designating three members of the local bar to draw up and file charges against Mosher, and a part of the same order he was required to appear and answer on the first day of said term.

The court will notice in this case that the information which permitted the action of the circuit judge was that derived from third parties and not something which happened in open court, which is the distinguishing feature. As in the latter instance, the circuit judge may of his own motion disbar, while in the former, the attorney in default must be notified and have his day in court.

The next case cited by counsel is State v. Kirk (Fla.), 95 Am. Dec. 314. This case simply holds that: "Where it is intended to apply to the court to have an attorney disbarred, the proper course of proceeding is to present the evidence relied on to the court, and it will direct a rule to show cause to be entered if a case proper for the action of the court be presented. This rule is served and returned, and the court hears and determines the case according to law." That is exactly what was done in the case at bar.

Courts have an inherent power to disbar attorneys and strike their names from the rolls independent of any statute on the subject. State ex rel. Johnson v. Gebhardt, 87 Mo.App. 572. For other cases to the same effect, see Decennial Edition of the Ann. Digest on Attorneys and Client, Key No. 36. (1)

A proceeding to disbar an attorney is neither a civil nor criminal action, but is a proceeding sui generis, the object of which is not the punishment of the offender but the protection of the court. In re Davis, 166 S.W. 341; State v. Peck, 88 Com. 447, L. R. A. 1915H. 663; Re Bowman, 7 Mo.App. 567; In re Durant (Conn.), 10 Ann....