Hall v. Eary

• Decision Date: 19 September 1933
• Docket Number: (No. 7631)
• Court: West Virginia Supreme Court
• Parties: Grace M. Hall, Admx., etc. v. Sherman H. Eary

114 W.Va. 82

Grace M. Hall, Admx., etc.

v.Sherman H. Eary

(No. 7631)

Supreme Court of Appeals of West Virginia.

Submitted September 12, 1933.

Decided September 19, 1933.

Attorney and Client

Code 1931, 30-2-13, dealing with the liability of an attorney for failure to pay over moneys collected, after giving the client a right to an action by notice of motion, and damages in lieu of interest, not exceeding fifteen per cent per annum, provides, "and he shall be deemed guilty of a misdemeanor and be fined not less than twenty nor more than five hundred dollars." The quoted portion of the statute presupposes an indictment and conviction.

Error to Circuit Court, Kanawha County.

Action by Grace M. Hall, administratrix, etc., against Sherman H. Eary. Judgment for plaintiff, and defendant brings error from that part of judgment fining and disbarring him.

Beversed and remanded.

J. Howard Hundley, A. M. Belcher and D. L. Salisbury, for plaintiff in error.

Bobert H. C. Kay, for Bar Association of City of Charleston as amicus curice.

Woods, Judge:

Grace M. Hall, as administratrix of the estate of J. William Hall, deceased, instituted this action by notice of motion, under Code 1931, 30-2-13, to recover certain moneys alleged to belong to decedent, and which defendant, as attorney for said decedent during the latter's life-time, had failed to pay over on demand.

A verdict was returned: '' We the jury find for the plain- tiff and assess her damages at $763.13, Signed Charles K. Payne, Foreman." The trial court overruled defendant's motion to set aside the verdict and award him a new trial, and adjudged that the plaintiff recover from the defendant the above sum, "together with damages in lieu of interest thereon at the rate of fifteen per cent per annum from the 9th day of March, 1933, until paid, and her aosts in this action by her expended, including a statutory attorney's fee of ten dollars. And it appearing unto the court that the defendant, Sherman H. Eary, is an attorney at law, and that the money for which judgment has heretofore been rendered was collected by him as such attorney at law, and that he failed to pay the same to his client on demand, or within six months after receipt thereof, without good and sufficient reason for such failure, it is therefore considered by the court as part of its judgment, and it is so ordered and adjudged by the court on its own motion that Sherman H. Eary be deemed guilty of a misdemeanor and be fined Twenty Dollars ($20.00); and. it is further considered by the court as a part of its judgment, and it is so ordered and adjudged by the court on its own motion, that said Sherman H. Eary be, and he is hereby disbarred from practicing as an attorney in any of the courts of this state."

A writ of error was sought to the foregoing order, and this Court refused the application to that portion of the judgment finding money due plaintiff, but awarded the writ prayed for as to the fine and disbarment.

Code 1931, 30-2-13, provides: "If any attorney receive money for his client as such attorney and fail to pay the same on demand, or within six months a: !ter receipt thereof, without good and sufficient reason for such failure, it may be recovered from him by suit or motion; and damages in lieu of interest, not exceeding fifteen per cent per annum until paid, may be awarded against him, and he shall be deemed guilty of a misdemeanor and be fined not less than twenty nor more than five hundred dollars."

The chief error stressed is that the trial court was not warranted in adjudging that Eary "be deemed guilty of a misdemeanor and be fined twenty dollars," etc., in a civil action. It is pointed out that under the criminal lav a person may not be convicted by a mere preponderance of the evidence, but that the jury must believe him guilty beyond all reasonable doubt, To support the contention that...