Ex Parte S. P. Mitchell, (CC 643)

• Decision Date: 13 May 1941
• Docket Number: (CC 643)
• Citation: 123 W.Va. 283
• Court: West Virginia Supreme Court
• Parties: Ex Parte S. P. Mitchell

123 W.Va. 283

Ex Parte S. P. Mitchell

(CC 643)

Supreme Court of Appeals of West Virginia.

Submitted April 15, 1941.

Decided May 13, 1941.

1. Attorney and Client-

An order of a circuit court annulling the license of an attorney to practice law under the procedure prescribed in Code, 30-2-7, which order has become final by the adjournment of the court for the term at which it was entered, cannot thereafter be set aside or in any way modified or altered by the court.

2. Attorney and Client

A circuit court which has entered an order annulling an attorney's license to practice law, is without jurisdiction, after such order has become final, to grant any relief upon the petition of the attorney praying for the setting aside of such order of annulment and his reinstatement for practice in the courts of this state.

Ex Parte Mitchell [May 1941

Certified from Circuit Court, Kanawha County.

S. P. Mitchell's license to practice law was annulled. After more than two and one-half years, S. P. Mitchell filed a petition for reinstatement as a practicing attorney at law and to set aside order annulling his license. The Charleston Bar Association demurred to the petition. The demurrer was overruled, and the circuit court on its own motion certifies certain questions to the Supreme Court of Appeals.

Reversed; remanded.

J. Howard Hundley, for petitioner. Melville Stewart, for respondent. Wm. M. Woodroe, amicus curiae.

Rose, Judge:

The Circuit Court of Kanawha County, on its own motion, certified here the questions of law arising before it upon the demurrer of the Charleston Bar Association to the petition of S. P. Mitchell, formerly a member of the Bar of that court, seeking to be reinstated as such.

In the first paragraph of the petition, Mitchell alleges:

"That by an order entered in this Honorable Court on the 11th day of June, 1937, more than two and one-half years ago, he was disbarred from practicing law in the Courts of this State, until the further order of this Honorable Court."

The second, third, fourth and fifth paragraphs allege generally the settlement of all matters of which petitioner was convicted; the removal of a certain agent of the petitioner, through whom the petitioner's troubles are claimed to have arisen; and the feeling of the petitioner that he has been sufficiently punished. The prayer is, inter alia, that the petitioner may be:

"* * * reinstated as a practicing Attorney-atlaw of the Circuit Court of Kanawha County and all other Courts of West Virginia, and that the order annulling his said license may be set aside and held for naught * * *."

May 1941]

Ex Parte Mitchell The demurrer to the petition is based upon the contention that the order sought to be set aside annulled absolutely and finally the license of the petitioner to practice law, and that, therefore, the Circuit Court of Kanawha County had no jurisdiction to entertain the petition, or to grant any relief prayed for therein.

The demurrer was overruled, and the court, on its own motion, certified to this Court the following questions of law:

"1. Whether said petition is sufficient.

"2. Whether in such cases the jurisdiction and power to hear and determine said petition on its merits is given to the Circuit Court under the statute.

"3. Whether the jurisdiction of the court is a continuing jurisdiction under the statute."

We believe that all the questions arising in this proceeding will be solved by taking note of the clear distinction between a common law proceeding for disbarring an attorney from practice in a particular court, and a proceeding under the West Virginia statute to annul an attorney's license to practice law.

Counsel for the petitioner cite a plenitude of authorities to sustain the position that a court in this state has inherent common law jurisdiction to disbar attorneys from practicing therein and to reinstate them at its discretion. 2 Thornton on Attorneys, section 902; 7 C. J. S., pp. 814-17; In Re Daugherty, 103 W. Va. 7, 136 S. E. 402; State v. Shumate, 48 W. Va. 359, 37 S. E. 618; Ex Parte Fisher, 6 Leigh 619, 33 Va. 619. But was the petitioner merely "disbarred" from practicing in the Circuit Court of Kanawha County? It is true that the paragraph of his petition above quoted so alleges. If this statement that he was merely so disbarred "until the further order of" the court is true, then, undoubtedly, the court would have continuing jurisdiction of the proceeding and could terminate the disbarment at any time. If the petitioner's status is to be determined from this allegation alone, the demurrer was correctly overruled. But the petition con- Ex Parte Mitchell [May 1941

tains the prayer that the order "annulling his said license" may be set aside and held for naught. This, unquestionably, directly implies that the order sought to be modified or abrogated was more than one merely disbarring the petitioner from practice until the further order of the court. And we find in the record here a certified copy of the order itself (whether filed by the petitioner or in what way brought into the case does not appear). This order purports to bring on for hearing the charges preferred by the Charleston Bar Association against S. P. Mitchell upon evidence submitted by both the complainants and the respondent, and finds the respondent guilty of malpractice on seven of the charges, and not guilty on four others, and pronounces judgment as follows:

"And it appearing to the court that this proceeding has been prosecuted in all respects in accordance and compliance with the law and statutes of West Virginia made and provided in such cases, it is therefore adjudged, and ordered by the court that the license of the said S. P. Mitchell to practice law in the courts of this state be, and the same is hereby annulled, and that the said S. P. Mitchell be, and he is hereby disbarred from practicing law at the bar of this court and the other courts in the State of West Virginia."

Whether the court, in considering the demurrer, could look to this order, if the proceeding in which it was made was completely closed, need not now be decided. Undoubtedly, the court could, and was required to, take notice of any pending case before it, and, therefore, could, and did, take judicial notice that there was no proceeding pending therein in which the petitioner was disbarred "until the further order" of the court, or merely disbarred generally. The demurrer must have been heard, and properly so, upon the petition, the demurrer and the order of June 12, 1937.

There can be no question, therefore, but that the petitioner's contention that he was merely disbarred until the further order of the court was incorrect. We, there- May 1941]

Ex Parte Mitchell fore, are compelled to consider the petition as one to set aside or revoke the order of the circuit court made June 12, 1937, annulling the petitioner's license to practice law. Indeed, it could serve the petitioner not at all to have the demurrer overruled on the theory that his pleading shows him to have been merely "disbarred * * * until the further order" of the court, only to be defeated on the merits by the sure disproval of this allegation by the record, on final hearing.

The distinction between a proceeding to annul an attorney's license and a common law disbarment has been judicially recognized in this state since the case of Ex parte Hunter, 2 W. Va. 122, in which Judge Brown said at pages 144 and 145:

"The license, of itself, and before admission or induction by the court, does not constitute the holder an attorney or officer of any court, but simply entitles him to be admitted as such, to practice in all the courts of the State, upon his taking the oaths required by the laws in force at the time of such admission, unless good cause appears to the court for withholding its permission. * * *."

"* * * It will be observed also, that there is a marked distinction between the power of the court to supersede or annul the attorney's license, as provided in the 5th and 6th sections of chapter 164 of the Code, and the common law power to...