In re Darrow

Decision Date01 July 1910
Docket Number21,713
Citation92 N.E. 369,175 Ind. 44
PartiesIn the Matter of the Charges Against Lemuel Darrow and John W. Talbot
CourtIndiana Supreme Court

Rehearing Denied and Opinion Modified December 16, 1910.

From Elkhart Circuit Court; James S. Dodge, Judge.

Disbarment proceeding against Lemuel Darrow and others. From a judgment of disbarment, defendants Darrow and Talbot appeal.


Andrew J. Hickey, Elias D. Salsbury, Samuel Parker Elsworth E. Weir Perry L. Turner, Joseph E. Talbot and Deahl & Deahl, for appellants.

Osborn & McVey and James F. Gallaher, contra.


Monks, C. J.

This proceeding was brought by prosecutors appointed by the Laporte Circuit Court against appellants and another to disbar them from the practice of law in this State on account of alleged misconduct in said court.

Each appellant filed an answer in abatement. The prosecutors filed a demurrer for want of facts to each of said answers in abatement, which demurrers were sustained by the court.

A demurrer was filed by each of appellants to the complaint and was overruled by the court. Appellants then answered by general denial.

Appellants filed a motion and affidavit for a change of venue, and the court changed the venue of said cause to the St. Joseph Circuit Court, and on application of the prosecutors the venue of said cause was changed by the St. Joseph Circuit Court to the Elkhart Circuit Court. The cause was tried in the last named court by a jury, and a verdict returned against appellants, and over the separate motion of each appellant for a new trial judgment was rendered upon the verdict disbarring appellants.

The complaint, in substance, charged appellants and another with having corruptly conspired and confederated together to prevent the due course of justice, and to mislead the court and the jury by procuring a witness to testify falsely in the action of The State of Indiana against Stella Lula for grand larceny then pending in the Laporte Circuit Court, and in pursuance of said conspiracy did corruptly procure and hire said witness for $ 25 so to testify in said court. The details of the conspiracy and procurement are fully set out. It is also alleged in the complaint that said appellant Darrow was admitted to practice in all the courts of this State by the Laporte Circuit Court, and that appellant Talbot was admitted to practice in all the courts of this State by the St. Joseph Circuit Court; that each, from the date of his said admission to the time of the acts complained of, had practiced in the Laporte Circuit Court. The order of the court appointing said prosecutors and the charges preferred by them were sufficient in form and substance.

Appellant Talbot contends that the Laporte Circuit Court had no jurisdiction over his person, and that consequently the Elkhart Circuit Court, where the cause was tried, had no jurisdiction over his person. This question is presented by demurrer to his plea in abatement. He bases this contention on the ground that he was not, when he filed said answer in abatement, and never had been a resident of Laporte county, and had not practiced in the Laporte Circuit Court, except in certain cases. The statute concerning disbarment proceedings provides as follows: "The proceedings to remove or suspend an attorney may be commenced by direction of the court or on motion of an individual. In the former case, the court must direct some attorney to draw up and prosecute the accusation; in the latter case, it may be drawn up by any person, and sworn to by the person making it. Such accusation may be filed in any court in which the attorney practices; and after five days' notice of the filing, the attorney shall be bound to appear and plead to the same, or suffer judgment by default. If he appear, pleadings may be filed and trial had as in other cases." § 1011 Burns 1908, § 976 R. S. 1881, being § 845 of "An act concerning proceedings in civil cases," in force since September 19, 1881 (Acts 1881 p. 386).

The plea in abatement filed by said Talbot shows that he had practiced in said Laporte Circuit Court, and said section of the statute expressly provides that "such accusation may be filed in any court in which the attorney practices." This section of the statute gave said Laporte Circuit Court jurisdiction over the person of said Talbot in said cause.

It is next contended that the St. Joseph Circuit Court erred in granting a change of venue from that court to the Elkhart Circuit Court upon the motion of the prosecution, over the objection of appellants.

It is expressly provided in § 1011, supra, that if the accused appear, "pleadings may be filed and trial had as in other cases." This would appear to include not only pleadings, but all that appertains to the trial of such cause, that is, a change of venue, jury trial, etc. It was held in the case of Reilly v. Cavanaugh (1879), 32 Ind. 214, that under said § 1011, supra, there was a right to jury trial. It was expressly held in the case of In re Griffin (1904), 33 Ind.App. 153, 69 N.E. 192, that the accused was entitled to a change of venue. Section 3101 Burns 1908, Acts 1895 p. 205, § 1, which authorizes proceedings for the appointment of a guardian for a person of unsound mind, provides that the "issue shall be tried as the issues in civil actions are tried, by the court, or by a jury, to be impaneled under the direction of said court." This court held in the case of Berry v. Berry (1897), 147 Ind. 176, 46 N.E. 470, under said provision, that a change of venue might be had in such special proceeding by virtue of § 422 Burns 1908, § 412 R. S. 1881, of the code of civil procedure.

This proceeding, being to disbar an attorney under the provisions of § 1011, supra, is subject, therefore, to the rules of civil procedure, except as otherwise specifically provided as to such proceedings for disbarment. Weakley v. Wolf (1897), 148 Ind. 208, 47 N.E. 466; Berry v. Berry (1897), 147 Ind. 176, 46 N.E. 470; Ex parte Walls (1880), 73 Ind. 95, 107; Reilly v. Cavenaugh, supra.

It is insisted by appellants, however, that § 422, supra, under which said change of venue was granted, contemplates that changes of venue shall be granted in adversary proceedings only; that is, there shall be a party plaintiff and a party defendant; that this proceeding is ex parte, and not adversary.

Regardless of the title of the case, the proceeding is not ex parte, but is an adversary one. There was an accusation or complaint filed against appellants and issues formed thereon by a general denial filed by them, a jury trial and a verdict in all respects in conformity with our code of civil procedure, and a judgment on the verdict, which is conclusive upon the parties, and can be pleaded as a bar to another action for the same cause, so long as it remains in force. This constitutes an adversary, and not an ex parte proceeding. Berry v. Berry, supra.

While no plaintiff is named in this proceeding, and the cause may be prosecuted without naming a plaintiff when brought on the order of the court, it may properly be instituted in the name of the State, when brought on the order of the court. This is true, because the State has a direct interest in seeing that the even course of justice be not interfered with, and that attorneys, who are officers of the court, and clothed with authority to present and defend causes, shall perform their duties honestly and not corruptly, and with equal fairness to the court and their clients. And thus § 1011, supra, places the duty upon the court, when advised that an attorney practicing before it has violated his duty to the detriment of either his client or the court, to appoint an attorney to represent the State and appear as the prosecutor for the State, to the end that if the offender be found guilty he shall be stripped of his authority and privileges as an attorney. It follows that as representatives of the State the prosecutors have the right to invoke the aid of any rule of procedure accorded to other parties in similar actions. If it be true, as contended by appellants, that there is no party plaintiff in this cause, and therefore no change of venue can be granted to plaintiff, since a change can be granted only upon the motion of a party to the action, then the State or the prosecutors would indeed be in a strange condition at the trial, since subpoenas are issued only upon application of a party to the action. § 507 Burns 1908, § 484 R. S. 1881. Though defendant is entitled to a jury (Reilly v. Cavenaugh, supra), the prosecutors would not be, since a jury is had upon the demand of either party. § 545 Burns 1908, § 520 R. S. 1881. They would have no peremptory challenges, since only parties may challenge. § 556 Burns 1908, § 531 R. S. 1881. The jury would have nothing to try, since they are to try the matters in issue between the parties. § 555 Burns 1908, § 530 R. S. 1881. They could not open the case, since the party upon whom rests the burden must do so. § 558 Burns 1908, § 533 R. S. 1881. They could not have instructions, since only "either party" has this privilege, (§ 558 Burns 1908, subd. 4, § 533 R. S. 1881), and so on, through every step of the trial. The court did not err in sustaining said motion for a change of venue, neither did the court err in granting the change to Elkhart county, there being no abuse of discretion shown.

It is next insisted by appellants that the court erred in refusing to grant each appellant a separate trial of said cause, on the ground that disbarment proceedings are special in their nature, and that the statute makes no provision for a joinder of parties defendant in such proceedings. It is clear however, that when two or more attorneys jointly commit acts which, if proved, justify the...

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