In re Disbarment of Sizer

• Citation: 267 S.W. 922,306 Mo. 356
• Decision Date: 30 December 1924
• Docket Number: 24163
• Parties: IN RE DISBARMENT OF F. P. SIZER AND H. A. GARDNER
• Court: United States State Supreme Court of Missouri

267 S.W. 922

306 Mo. 356

IN RE DISBARMENT OF F. P. SIZER AND H. A. GARDNER

No. 24163

Supreme Court of Missouri

December 30, 1924

Rehearing Granted, Reported at 306 Mo. 356 at 391.

Petition to Disbar Attorneys.

Petition dismissed.

Geo H. English, A. T. Dumm, C. F. Wescoat, N. T. Cave and Jno. P. McCammon for petitioners.

(1) Proceedings to disbar an attorney are not criminal proceedings, but civil. Philbrook v. Newman, 85 F 139; State v. Clark, 46 Iowa 159; Slemmer v. Wright, 46 Iowa 705; Mattler v. Schaffner, 53 Ind. 245. (2) The omission of verification of the original petition is of no consequence and the motion should be overruled. (a) The provision of the statute requiring petition to be verified is not jurisdictional. If the accused has been notified and has opportunity to defend, jurisdiction is acquired. Jackson v. State, 21 Tex. 668; Randall v. Brigham, 7 Wall. 523; Ex parte Wall, 17 Otto, 265; United States v. Parks, 93 F. 414; In re Bowman, 7 Mo.App. 567; State ex rel. v. Laughlin, 10 Mo.App. 1. (b) By appearance and answer respondent waived objections to jurisdiction. Huntington v. House, 22 Mo. 365; 31 Cyc. 732. (3) An attorney may be disbarred in one jurisdiction or in one state for acts or misconduct committed in another state. In re Mark, 101 N.Y.S. 680; In re Lamb, 94 N.Y.S. 331. (4) The correspondence between respondent Gardner and Robertson should be considered by the court as legitimate matter of cross-examination. Butler v. Watkins, 13 Wall. (U.S.) 456; 40 Cyc. 2480, 2486. (5) Solicitation of employment is a violation of a lawyer's professional obligation and cause for disbarment. Ingersol v. Gold Creek Coal Co., 117 Tenn. 263; In re Clark, 184 N.Y. 222; In re Gorsuch, 113 Kan. 380; In re Judy, 114 Kan. 57; In re Staton, 112 Kan. 226; Chunes v. Railway, 298 F. 964; Weinard v. Railway, 298 F. 977.

Sizer & Gardner, pro se, A. L. McCawley, Wm. J. Kiely and John T. Sturgis for respondents.

(1) The motion to dismiss filed herein for failure of petitioner to print and file abstracts of the record for use of this court, should be sustained. This is as essential in original proceedings in this court as in ordinary appeals. State ex rel. Pedigo v. Robertson, 181 S.W. 987; State ex rel. Kansas City v. Ellison, 219 S.W. 90; State ex rel. Hurt v. Wurdeman, 250 S.W. 46. (2) The motion to dismiss for failure to verify the petition and charges made herein should be sustained. Under Sec. 682, R. S. 1919, regulating disbarment in this State "charges against an offending attorney shall be in writing and verified." This provision is in connection with provisions as to who may prefer the charges and in what courts. If it be granted that this court has inherent power to disbar attorneys, yet the Legislature has the power and right within reasonable bounds to limit and regulate the exercise of such power and define the procedure, and the statutory provision that the charges "shall be in writing and verified" is mandatory and a reasonable and valid regulation. Jones v. Sanderson, 287 Mo. 369; State ex rel. Selleck v. Reynolds, 252 Mo. 369; Railroad v. Gildersleeve, 219 Mo. 200; Ex parte Creasy, 243 Mo. 708; State ex rel. v. Gibhart, 87 Mo.App. 546; Ex parte Burr, 9 Wheat. 527. This is a proceeding under the statute to disbar. Where verification is made mandatory by a statute it is essential to the rendition of a valid judgment. Robertson v. Robertson, 207 Mo. 137; Hinkle v. Lovelace, 204 Mo. 227; Norman v. Ins. Co., 237 Mo. 576. Here the question of verification is raised before the case is submitted for decision. Even if the verification of the petition is not jurisdictional and may be waived, we see no sound reason for saying that it is waived merely because defendants filed their answer or return to the writ and attended the taking of evidence before filing the motion to dismiss. There is no element of estoppel in such failure and the motion is timely. (3) There is no contention by defendants that a proceeding to disbar is a criminal rather than a civil proceeding. Such proceeding, however, is highly penal if not quasi-criminal, and the statutes governing same will be strictly construed and the accused will not be convicted except in strict compliance with the statutory regulations and on clear and convincing evidence. Ex parte Burr, 6 L.Ed. 152, 9 Wheat. 528; Ex parte Garland, 4 Wall. 333; Bradley v. Fisher, 20 L.Ed. 646, 13 Wall. 335. The charges must be specific and definite and the evidence will be confined to the exact charges made. State ex rel. v. Gibhart, 87 Mo.App. 542; Weeks on Attorneys, sec. 83. (4) Sec. 668, R. S. 1919, makes it unlawful for an attorney to divide fees with any person not a lawyer, which would include the payment of a commission or percentage for procuring cases. That these defendants had violated this statute is made prominent in the petition and is evidently the charge on which petitioner mainly relied in bringing this proceeding. There is no evidence whatever to sustain this charge. But, to the contrary, the charge is disproved. That charge goes out of the case for want of proof. It is improper to introduce evidence outside any issue made by the pleadings and after this court had refused to allow an amendment covering a new charge that defendants divide fees with one William C. Robertson, it was clearly improper to introduce evidence supporting such a charge. While much latitude is allowed in the cross-examination of a witness, it is improper to seek to inject incompetent evidence in a case under the guise of cross-examination. It was a transparent subterfuge on the part of petitioner to seek to put in evidence the alleged copies of letters to or from said Robertson. 40 Cyc. p. 2484, note 69, p. 2486, note 78; Summers v. Tarpley, 208 S.W. 269; 1 Wigmore on Evidence, sec. 878. Moreover there is no evidence now before the court that there were such original letters or that the offered documents were correct copies. The evidence has been closed and in this State of the record this court cannot consider this matter. (6) While it is charged by petitioner that defendants paid money as an inducement for contracts and business, yet the only testimony on this question is that defendants made small loans to three different clients, and the testimony is undisputed that these amounts were loans made to clients after the relation of attorney and client existed, and represented money borrowed from the defendants by these three clients. This constituted no infraction of the law and smacks neither of champerty nor maintenance. Taylor v. Parks, 171 Mo.App. 254; Mytton v. Mo. Pac., 211 S.W. 111; Shelton v. Franklin, 224 Mo. 342; 11 C. J. 245, sec. 27. (7) These defendants still insist that this court has no jurisdiction to hear this original proceeding. This point was briefed and argued and the jurisdiction upheld by a divided court on a motion to dismiss. As supporting the proposition there announced that this court has been holding contrary to the views there expressed by the chief justice as to want of jurisdiction in this case "for practically a century," the court cites: State ex rel. v. Reynolds, 252 Mo. 369; State ex rel. v. Mullins, 129 Mo. 236; State ex rel. v. Harber, 129 Mo. 271; State ex rel. Jones v. Laughlin, 73 Mo. 446. Clearly, none of these cases have placed this interpretation on this constitutional provision prior to its readoption by the Constitution of 1875. The majority opinion cites, however, the cases of State v. Foreman, 3 Mo. 602; Strother v. State, 1 Mo. 605; and State v. Watkins, 3 Mo. 480, as placing a construction on this constitutional provision upholding this court's original jurisdiction prior to its adoption as part of the present Constitution. This is certainly a misapprehension. Those three cases were all tried in the circuit court and reached the Supreme Court as appellate cases. There was no occasion for the Supreme Court to there consider its power and jurisdiction to hear and determine an original proceeding brought in such court to disbar an attorney. The rights involved are purely personal, though valuable, and, in such cases, the fact that one or more persons have been deprived of rights by erroneous decisions of this court furnishes no reason for repeating the error. Long v. Long, 79 Mo. 656; 7 R. C. L. 1000; 11 Cyc. 749; Arnold v. Knoxville, 3 L. R. A. (N. S.) 840; Daniel v. State, 54 L. R. A. 289; Ex parte Holman, 21 L. R. A. (N. S.) 242.

Graves, C. J. All concur, except Walker, J., absent; David E. Blair and James T. Blair, JJ., concur in result, in separate opinion.

OPINION

GRAVES

The record in this case is of tedious length -- 1719 printed pages. We say tedious, because there is so much useless matter which proves nothing. Both sides have been guilty, and hence the freedom of criticism. With it all, it should be said that the oral combats between counsel have furnished spice, which rendered interesting the reading of the two printed volumes. The only regret is the evidence here and there evinces a little feeling. There should be none in a case entitled as is this one. On the face of the pleadings the case appears to be one in the name of the officers of the Kansas City and Springfield bar associations to disbar F. P Sizer and H. A. Gardner, doing business as attorneys at law under the firm name of Sizer & Gardner at Monett, Missouri. At least Monett is the headquarters of the firm, but their business (specializing in cases of tort) seems to have extended over much of Missouri, and several other states. Later representatives of the State and St. Louis bar associations were permitted to appear. That the firm succeeded in their line of work is thoroughly evidenced. Both complainants and respondents are members of the bar of this court. Both are entitled to...