Ford v. State

• Decision Date: 26 November 1937
• Docket Number: No. 26281.,26281.
• Citation: 194 S.E. 384,56 Ga.App. 840
• Parties: WILLI FORD. v. STATE.
• Court: Georgia Court of Appeals

56 Ga.App. 840

194 S.E. 384

WILLI FORD.

v.STATE.

No. 26281.

Court of Appeals' of Georgia, Division No. 1.

Nov. 26, 1937.

Rehearing Denied Dec. 15, 1937.

Syllabus by the Court.

1. No formal pleading is necessary in a suit to disbar an attorney at law. If with reasonable certainty and particularity it sufficiently apprises the attorney of the nature of the charges, it is good. All of the special demurrers to the petition to disbar in the present case were properly overruled.

2. There is no statute of limitations in this state which by any construction could be made applicable to a disbarment proceeding. Nor can the principles of equitable laches be applied to a disbarment proceeding which sets out as one of the grounds for removal that the defendant has been convicted of a crime involving moral turpitude, though said conviction was had a number of years before the institution of the proceedings. Especially is this true where the disbarment petition charges to the defendant the commission of other crimes or professional misconduct during the time between the conviction and the institution of the disbarment proceeding.

3. A disbarment proceeding is not intended for punishment, but to protect the courts from the official ministration of persons unfit to practice as attorneys therein. It is not necessary that the conduct of an attorney be criminal in order to subject him to disbarment, or, if that conduct does amount to a criminal offense involving moral turpitude, that there be a conviction of such an attorney before he can be disbarred therefor, and especially is this true where the acts were committed within his professional employment.

4. The fact that two other separate and distinct proceedings to disbar the defendant have been brought in other courts of thisstate for the same acts set out as a cause for disbarment in the present proceeding, and dismissed, does not effect a bar of the present proceeding.

5. Sections 3-508, 3-808 of the Code, providing for the renewal of actions, have no application to a proceeding to disbar.

6. Where the petition alleged that the defendant was a resident of Pulton county, and maintained an office and practiced law therein, the superior court of Fulton county had jurisdiction to entertain a disbarment proceeding against him, although all of the facts charged may have been committed in some other county.

7. The principle of law, that "whenever any court of competent jurisdiction has possession of a cause, it will retain it to the exclusion of all other courts, " has no application to the facts of this case.

8. Where, after the filing of the disbarment proceeding, the defendant was indicted for perjury, in several counts, for various false statements made in pleadings under oath to the disbarment proceeding, one of which counts charged the defendant with falsely denying that he had been convicted of a crime in another county of this state, as charged in the disbarment petition, a verdict finding him not guilty on such count on his trial under such indictment is not res judicata of the fact that he was not so convicted, in the trial of the disbarment proceeding.

9. The judges of the superior court did not err in suspending the defendant on motion therefor by the State, upon a showing that he had been convicted of perjury in Fulton county; and this is true although said conviction was upon appeal to this court by writ of error.

Error from Superior Court, Fulton County; John D. Humphries, E. D. Thomas, and Virlyn B. Moore, Judges.

Disbarment proceedings by the Solicitor General of the Atlanta Judicial Circuit, in behalf of the State of Georgia, against B. C. Williford. To review an adverse judgment, defendant brings error.

Affirmed.

R. B. Giles, Ben C. Williford, and J. C. Bowden, all of Atlanta, for plaintiff in error.

John A. Boykin, Sol. Gen., J. Walter Le Craw, and E. A. Stephens, all of Atlanta, for the State.

MacINTYRE, Judge.

On April 17, 1935, the Solicitor General of the Atlanta judicial circuit, in behalf of the State of Georgia, instituted disbarment proceedings against B. C. Williford. As grounds for disbarment the petition set forth that the defendant was indicted by the grand jury of Tift county, on December 7, 1921, in two counts, each charging a separate and distinct felony, to wit, (1) forgery of a deed, and (2) uttering said forged deed with intent to defraud; that the defendant was found guilty, the jury fixing his punishment at not less than four nor more than five years on each count, but recommending that he be punished as for a misdemeanor; that the trial judge thereupon sentenced him to the penitentiary for not less than four nor more than five years on each count, the sentence on count 2 to begin at the expiration of the sentence on count 1; that on December 24, 1921, said sentences were amended by the judge imposing a fine of $1,000, or in lieu thereof service of twelve months on the county chain gang, on each count; that, on information and belief, the fines of $2,000 were paid; that the defendant has been guilty of willful misconduct in his profession in the following particulars: (1) In 1929, he was intrusted by J. W. Davis with a mortgage made by W. R. Gurthie and payable to J. W. Davis for the purpose of collecting the same, and he did thereafter collect and convert $109 to his own use, to the injury and without the consent of J. W. Davis, for which offense the grand jury of Atkinson county, Ga., returned a true bill against the defendant at the October adjourned term of the superior court, which indictment is pending in the superior court of Atkinson county. (2) In 1929, the defendant being attorney of record for J. M. Giddens against E. P. Rouse and the Atlantic Coast Line Railroad Company, garnishee, the same being a certiorari from a justice's court, was intrusted by J. M. Giddens with $5 for the purpose of paying the court costs in said certiorari proceedings, and, after having been so intrusted, did wrongfully, fraudulently, and feloniously convert said sum of money to his own use, and failed and refused to return the same to J. M. Giddens; and that for such offense the grand jury of Atkinson county returned a true bill against the defendant, which indictment is still pending in the superior court of said county. The prayers were that the defendant be forever disbarred from the practice of law; and for an orderrestraining him from the practice of law until final termination of the disbarment proceeding.

The defendant filed pleadings as follows: (1) Demurrer; (2) plea and answer; (3) plea to the jurisdiction; (4) plea of res judicata; all filed on May 5, 1935; (5) amendment to plea and answer, filed after a motion by the plaintiff to dismiss the defendant's original plea and answer; (6) amendment to the plea to the jurisdiction; (7) amendment to plea of res judicata; (8) motion to dismiss the disbarment petition; (9) another motion to dismiss the disbarment petition; all filed on July 30, 1935; (10) a motion to dismiss the plaintiff's motion to dismiss the defendant's original plea and answer, above mentioned, filed on August 1, 1935; (11) another amendment to the original plea and answer; (12) another amendment to the plea to the jurisdiction, both filed on August 3, 1935; (13) an amendment to the demurrer; (14) an amended motion to dismiss the disbarment petition; both filed on December 2, 1935; (15) another amendment of the motion to dismiss the disbarment petition, filed on June 22, 1936. On October 10, 1936, the plaintiff filed a motion to suspend the defendant until final determination of the issues in the suit for disbarment, reciting that subsequently to the filing of the disbarment suit the defendant was indicted by the grand jury of Fulton county for the offense of perjury alleged to have been committed in several of his pleadings to the disbarment proceeding, above outlined, on which indictment he was tried, convicted, and sentenced to a term in the penitentiary. To this motion the defendant filed a demurrer and a plea and answer. On October 20, 1936, the court overruled the defendant's demurrers, the plea of res adjudicata, and motions to dismiss the disbarment petition, and passed the following order: "The motion to suspend Ben C. Williford from the right to practice law in the State of Georgia, pending the final determination of a motion to disbar him from practicing law, having been set for a hearing October 16, 1936, and it appearing from the evidence and argument had that the said Ben C. Williford has heretofore been convicted of offenses involving moral turpitude; it is therefore ordered that the said Ben C. Williford be, and he is hereby suspended from the right to practice law in the courts of the State of Georgia, until a final disposition of the proceeding to disbar him and until further order of the court, except that the said Ben C. Williford shall be allowed to appear before the judge in any case which has been tried before a jury and which is now pending on motion, in order that he may complete any case tried by him and which has not been finally terminated, and in which he is sole counsel." Exceptions are taken to the above rulings and the order suspending defendant from the practice of law until the final determination of the issues in the disbarment proceeding.

1. The special demurrers to the petition were properly overruled. The facts alleged as a cause for removing the defendant as an attorney were stated with certainty and particularity, and were sufficient to apprise him of the nature of the charges. No formal pleading is necessary in a suit to disbar an attorney.

2. Under the Code, § 9-501, if an attorney be convicted of a crime involving moral turpitude, he is as a matter of law unfit to remain a member of the legal profession and practice before the courts of this state, and, upon a proceeding brought therefor, the court should enter a judgment to that effect. A certified copy of the conviction is conclusive...