In re Contempt Proceedings Against Matthews

• Decision Date: 29 October 1936
• Docket Number: 6382
• Citation: 62 P.2d 578,57 Idaho 75
• Parties: In the Matter of Contempt Proceedings Against S.E. MATTHEWS
• Court: Idaho Supreme Court

62 P.2d 578

57 Idaho 75

In the Matter of Contempt Proceedings Against S.E. MATTHEWS

No. 6382

Supreme Court of Idaho

October 29, 1936

ATTORNEY AND CLIENT-PRACTICE OF LAW-CONTEMPT-PETITION FOR ORDER TO SHOW CAUSE, SUFFICIENCY OF.

1. Motion to strike from petition for order to show cause certain paragraphs on ground they were insufficient to create an issue, which did not point out any particular in which petition was insufficient, was not considered by supreme court.

2. In contempt proceedings, allegations in petition that defendant represented that he was learned in the law, particularly in preparing deed and probate papers, and that defendant prepared deeds for several heirs and made a charge therefor, held sufficient as against motion to make petition more definite in regard to what probate proceedings and other legal practice defendant engaged in and whether fee charged was stenographic or notary fee.

3. In contempt proceedings, petition alleging that defendant prepared numerous instruments and that he made a charge and received compensation therefor, but which did not allege amount charged, or received, held sufficient as against motion to make more definite, since amount charged was immaterial.

4. In contempt proceedings for illegal practice of law, demurrer would not lie to single paragraph of petition for order to show cause on ground that it did not state facts sufficient to constitute practicing law, since petition was sufficient if taken as a whole, it stated facts sufficient to constitute contempt (I. C. A., sec. 3-104).

5. Person who allegedly represented that he was learned in the law, particularly in matters connected with conveyancing and in preparation of probate papers in probate matters and who prepared deeds for heirs of an estate held engaged in "practice of law" within statute making illegal practice of law contempt of court, as against contention that preparation of deeds and mortgages did not constitute practice of law (I. C. A., sec. 3-104).

6. "Practice of law" as generally understood is the doing or performing of services in a court of justice, in any matter depending therein, throughout its various stages, and in conforming with adopted rules of procedure, and in a larger sense includes legal advice and counsel, and the preparation of instruments and contracts by which legal rights are secured, although such matter may or may not be depending in court.

7. Allegations in petition for order to show cause "that your affiant is informed and believes and therefore alleges the fact to be, that" held sufficient.

8. In contempt proceedings for illegally practicing law, petition charging that defendant represented he was learned in the law, particularly in conveyancing and in preparation of probate papers, and that he prepared deed for several heirs of an estate and charged fee therefor, held not subject to special demurrer as uncertain or ambiguous because not specifying whether fee charged was stenographic or notary fee. (I. C. A., sec. 3-104.)

Original proceedings on petition for order to show cause why S.E. Matthews should not be punished for contempt. Defendant's motion and demurrer overruled.

Petition denied, and demurrer overruled.

W. H. Witty and Clyde Bowen, for State Bar Commission.

We think it may be stated, without any fear of any contradiction, that it often requires a high degree of legal skill to properly draft and prepare a deed of conveyance, as well as the different types of mortgages, and there can be no question, we think, but that the drafting of bills of sale and contracts require often a high degree of legal skill and ability. It requires the marshaling of facts, and from said facts the preparation of instruments, with all of its legal implication predicated upon said facts so assembled.

It will not be questioned, we think, that the preparation of deeds of conveyance, mortgages and bills of sale require and constitute legal formalities and the United States Supreme Court has held that such practice constitutes the practice of law, and the United States Supreme Court in this regard holds:

"Persons acting professionally in legal formalities, negotiations, or proceedings, by the warrant or authority of their clients may be regarded as attorneys at law, within the meaning of that designation as employed in this country."

The first cause of any practical importance from our own court appears to be the case of In re Eastern Idaho Loan & Trust Co., 49 Idaho 280, 288 P. 157, 73 A. L. R. 1323, in which it appears that a large portion of the business of the Eastern Idaho Loan & Trust Company was substantially of the business of this defendant in this case, as shown to be, and the court in that case held the defendant guilty of contempt of this court. (Wayne et al. v. Murphy-Favre & Co. et al., 56 Idaho 788, 59 P.2d 721.)

O. R. Baum, Merrill & Merrill and R. J. Dygert, for Defendant S.E. Matthews.

The matters sought to be stricken from the affidavit are contained in paragraphs V, VI and VII. All of the charges made in said paragraphs are upon information and belief. Such allegations are wholly insufficient to constitute an issuable fact. (Swank v. Sweetwater Irr. & Power Co., 15 Idaho 353, 98 P. 297; In re Eastern Idaho Loan & Trust Co., 49 Idaho 280, 288 P. 157, 73 A. L. R. 1323; State v. Conn, 37 Ore. 596, 62 P. 289; State v. Newton, 16 N.D. 151, 112 N.W. 52, 14 Ann. Cas. 1035; Selowsky v. Superior Court, 180 Cal. 404, 181 P. 652.)

In all other cases which we have found dealing with the drafting of deeds, mortgages and bills of sale the same is interlocked with giving legal advice and generally contains sufficient to sustain the charge of practicing law even aside from the drafting of such instruments. Illustrating such situations are the following cases: Paul v. Stanley, 168 Wash. 371, 12 P.2d 401; Childs v. Smeltzer, (Pa.) 171 A. 883; People v. Alfani, 227 N.Y. 334, 125 N.E. 671.

HOLDEN, J. Givens, C. J., and Ailshie, J., concur. Morgan, J., did not sit with the court in this case nor participate in the decision.

OPINION

HOLDEN, J.

This is an original proceeding commenced in this court at the direction of the Board of Bar Commissioners of the State of Idaho for the purpose of obtaining an order requiring S.E. Matthews to show cause why he should not be punished for contempt of this court. Order to show cause issued as prayed for by petitioner.

Defendant moves to strike from the petition "upon the ground that the same does not constitute an action for contempt or any part of said action, but is wholly insufficient upon which to create an issue, . . . . all of Paragraph Numbered V and all of Paragraph Numbered VI and all of Paragraph Numbered VII."

Such motion fails to point out any particular in which the petition is insufficient to create an issue. Therefore, this court will not consider the same. (People v. Empire Gold & Silver Min. Co., 33 Cal. 171, 173.)

The defendant moves also that paragraphs numbered IV, V, and VI of the petition be made more definite and certain in the following particulars: 1. By alleging in paragraph IV "in what probate proceedings he (defendant) prepared any probate matters, and in what other types of legal practice he engaged in; and, . . . . whether said fee so charged was a stenographic fee or a fee for acting as a Notary Public." 2. By alleging in paragraph V how much defendant "charged and what he made his charge for for drafting the instruments referred to in said paragraph V." 3. By alleging in paragraph VI how much defendant "charged, and for what he made his charge for drafting the instruments referred to in said Paragraph VI." 4. By alleging in what manner defendant has engaged in the practice of law, and just what he has done that constitutes the practice of law.

It is alleged in paragraph numbered IV of the petition, among other things, "That for several years last past the said S.E. Matthews has resided in the City of Soda Springs, County of Caribou, State of Idaho, and has continuously represented that he was qualified and learned in the law and particularly in matters connected with all kinds and types of conveyancing and in the preparation of Bills of Sale, Deeds, Real estate Mortgages, Chattel Mortgages, preparing of Probate papers in Probate matters. . . . "

It will be seen that the petition expressly alleges that the defendant for a period of several years "has continuously represented that he was . . . . learned in the law and particularly in matters connected with all kinds and types of conveyancing and in the preparation of . . . . Probate papers in Probate matters. . . . " (Emphasis ours.) It is then alleged that a few days prior to April 29, 1936, defendant "prepared two Deeds of Conveyance for the several heirs of the Gorton Estate . . . . " and that he "charged a fee of $ 2.50 for each of said deeds; . . . . "

Funk &amp Wagnalls New Standard Dictionary, 1933 edition, defines the word "represent": To appear in the character of; personate. And the word "personate" is defined: To assume the character of; play the part of; pass for; impersonate; as, the imposter personated the prince. Hence, to represent oneself as being learned in the law, and "particularly in matters connected with all kinds and types of conveyancing and in the preparation of . . . . Probate papers in Probate matters . . . .," is, in effect, to assume the character of and to impersonate, and to hold oneself out as, a lawyer, and as such, especially well qualified to prepare all kinds and types of conveyances, and also to prepare papers in probate matters. So that where such a person is employed, under the circumstances alleged in the petition, to prepare deeds, whether in the matter of an estate, or otherwise, the employment is...