In re Darrow

• Decision Date: 01 July 1910
• Docket Number: No. 21,713.,21,713.
• Citation: 92 N.E. 369,175 Ind. 44
• Parties: In re DARROW et al.
• Court: Indiana Supreme Court

175 Ind. 44

92 N.E. 369

In re DARROW et al.

No. 21,713.

Supreme Court of Indiana.

July 1, 1910.

Appeal from Circuit Court, Elkhart County; James S. Dodge, Judge.

Disbarment proceedings against Lemuel Darrow and John W. Talbot. From an adverse decree, defendants appeal. Affirmed.

See, also, 83 N. E. 1026.

Andrew J. Hickey and Samuel Parker, for appellants. Frank E. Osborn, W. A. McVey, and J. F. Gallager, for appellees.

MONKS, C. J.

This proceeding was brought by prosecutors appointed by the La Porte 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 case 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 for the purpose of preventing the due course of law and justice, and to mislead the court and jury by procuring a witness to testify falsely in the action of the State of Indiana v. Stella Lula for grand larceny then pending in the La Porte circuit court, and in pursuance of said conspiracy did corruptly procure and hire said witness for $25 to so 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 La Porte circuit court and that 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 at the time of the acts complained of, had practiced in the La Porte 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 La Porte 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. The 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 La Porte county and had not practiced in the La Porte circuit court except in certain cases. The statute concerning disbarment proceedings provides: “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 may 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 appears, pleadings may be filed and trial had as in other cases.” Section 1011, Burns' Ann. St. 1908, being section 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 La Porte 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 La Porte 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 section 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 Reilly v. Cavanaugh, 32 Ind. 214, that under section 1011, supra, there was a right to jury trial. It was expressly held in In re Griffin, 33 Ind. App. 153, 69 N. E. 192, that the accused was entitled to a change of venue. Section 3101, Burns' Ann. St. 1908, 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 directions of the court,” and this court held in Berry v. Berry, 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 section 422, Burns' Ann. St. 1908, of the Code of Civil Procedure. The proceeding being to disbar an attorney under the provisions of section 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, 148 Ind. 208, 47 N. E. 466;Berry v. Berry, 147 Ind. 176, 46 N. E. 470; Ex parte Walls, 73 Ind. 95, 107;Reilly v. Cavanaugh, 32 Ind. 214.

It is insisted by appellants, however, that section 422, Burns' Ann. St. 1908, under which said change of venue was granted, contemplates that changes of venue shall only be granted in adversary proceedings; 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, 147 Ind. 176, 178-180, 46 N. E. 470.

While no plaintiff is named in this proceeding and the same may be prosecuted without naming a plaintiff when brought on the order of the court, the same 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 section 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 only be granted 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 subpœnas are only issued upon application of any party to the action (section 507, Burns' Ann. St. 1908). Though defendant is entitled to a jury (Reilly v. Cavanaugh, supra), the prosecutors would not be, since a jury is had upon the demand of either party (section 545, Burns' Ann. St. 1908). They would have no peremptory challenges, since only parties may challenge (section 556, Burns' Ann. St. 1908). The jury would have nothing to try, since they are to try the matters in issue between the parties (section 555, Burns' Ann. St. 1908). They could not open the case, since the party upon whom rests the burden must do so (section 558, Burns' Ann. St. 1908). They could not have instructions, since only “either party” has this privilege (section 558, cl. 4, Burns' Ann. St. 1908), 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 proven, justify the disbarment of each that they may be jointly charged as together doing the acts, and it is not error to refuse a separate trial to each in the absence of a statute giving such right; but they may be tried together, and one or more may be acquitted and the others convicted, or all may be acquitted or convicted, according to the evidence. Klingensmith v. Kepler, 41 Ind. 341;In...