In re Disbarment Proceedings Against J. L. Brown

Decision Date16 February 1895
Citation39 P. 469,2 Okla. 590,1895 OK 7
PartiesIn the Matter of Disbarment Proceedings Against J. L. BROWN.
CourtOklahoma Supreme Court

Error from the District Court of Oklahoma County.

Syllabus

¶0 1. DISBARMENT PROCEEDINGS-- Suspension of Attorney--Appeal--An appeal lies to the supreme court, from an order of the district court, suspending an attorney from practice, pending a trial on information for his disbarment.

2. SAME--Opportunity to be Heard--A defendant in a disbarment proceeding is not entitled to twenty days' time, the time allowed to answer the ordinary summons under the code, but may be cited to appear and answer within any time that gives him a reasonable opportunity to be heard.

3. SAME--Change of Venue--The provision of § 3, of ch. 5, of the act of congress, approved December 21, 1893, which authorizes the supreme court or the chief justice to designate any judge to try a particular case, or cases, in any district, when the judge of said district is biased or prejudiced in the case, does not take away from a party his right of change of venue, under § 3930 of the Statutes of Oklahoma, of 1893, and his application for such change of venue cannot be refused on the ground that his proper remedy would be an application for a change of judge.

Grant Stanley, for plaintiff in error.

Charles H. Eagin, Huger Wilkinson and J. C. Strang, for defendant in error.

BIERER, J.

¶1 An appeal is brought to this court, from an order made by the district court of Oklahoma county, suspending the plaintiff in error, J. L. Brown, pending his trial on charges preferred against him by William A. Wallace, for the purpose of disbarring said Brown from practicing as an attorney at law. The sworn information was filed by Wallace, in the district court, on the 3d day of December, 1894, and on that day a notice was issued, with a copy of the charges and information attached, and directing Brown to appear in the district court of Oklahoma county and answer the same on the 6th day of December, 1894. and this notice was personally served on Brown on the day it was issued. Brown appeared in the action on December 6, 1894, and filed his motion to set aside the notice, because the time allowed in the notice was shorter than the time allowed him by law, he claiming that the proceeding was a civil proceeding, and that he was, under our civil code, allowed twenty days from the return day of the notice in which to answer or demur. This motion was overruled, and subsequently Brown filed an application for a change of venue on account of the bias and prejudice of the presiding judge, Hon. Henry W. Scott, against him. This application was overruled, and on December 22, 1894, an order was made suspending said Brown from practice, pending the trial of the cause, from which order Brown takes this appeal.

¶2 The defendant in error claims that appeal does not lie, from this temporary order of suspension made against Brown, pending the trial of the action.

¶3 It is claimed that this is an interlocutory order, made to operate only during the pendency of the action, and made in the exercise of the inherent power of the district court, and from which no appeal will lie.

¶4 It is true that the power to suspend or disbar an attorney from practice is inherent in all courts. ( Peyton's Appeal, 12 Kan. 398; Ex parte Robinson, 19 Wall. 505, 22 L. Ed. 205; In re Goodrich, 79 Ill. 148; Beene vs. State, 22 Ark. 149.)

¶5 But this does not determine the question against the right of appeal from the order of suspension. Most of the judgments which a court renders are rendered in the exercise of some inherent power of the court, and the question as to whether an appeal lies from such judgment must be determined from other considerations.

¶6 In the case of Burke vs. Territory, 37 P. 829, we held that the power to punish for contempt is inherent in all courts of record, and that an appeal lies to the supreme court from a judgment of contempt.

¶7 Section 330, of the statutes of Oklahoma of 1893, provides:

"In case of suspension or removal being ordered by a district court, an appeal therefrom lies to the su- preme court, and all the original papers, together with a transcript of the record; shall thereupon be transferred to the supreme court, to be considered and finally acted upon. A judgment of acquittal by the district court is final."

¶8 An appeal is a matter of statutory regulation, and the legislature here has provided for an appeal to the supreme court from all judgments of suspension or disbarment. There is no limit on the right of appeal, and no classification here of different kinds of suspensions that might, by the court, be ordered. It is a broad and comprehensive right of appeal "in case of suspension," and includes any and all suspensions of attorneys that might be made.

¶9 In the case of Winkelman vs. The People, 50 Ill. 449, it is held that an appeal lies from an order of the circuit court, suspending an attorney from practice, although in that case no statute is cited granting the appeal.

¶10 In the case of Walls vs. Palmer, 64 Ind. 493, it was also held that an appeal lies from the judgment of the circuit court suspending an attorney from practice.

¶11 It is true that, in both of these cases cited, the judgment of suspension was a final judgment in the proceeding, and the judgments were not made as temporary orders, as in this case, but we do not see that this would change the rule. The right of appeal in a case like this would not depend on the length of time which the judgment of suspension might be made operative. The right of review is granted from the judgment of suspension, no matter how temporary or how permanent it may be.

¶12 Appeals from these temporary orders do not exist in the absence of statutory regulations therefor.

¶13 Our Organic Act provides that an appeal shall be allowed from the district to the supreme court from all final judgments. The legislature may not take away the right of appeal in such cases, nor does this grant of right of appeal take away the right of the legislature to grant appeals from other orders or determinations not final in their nature. Under our code of civil procedure, an appeal lies from the order of the district court, granting or refusing an application for a temporary injunction, and under this provision appeal has been allowed from an order overruling an application for a temporary injunction. ( Bertenshaw vs. Hargrove, 33 Kan. 668, 7 P. 270; Akin vs. Davis, 14 Kan. 143.)

¶14 This provision of the statute, allowing an appeal from an order of suspension in a disbarment proceeding, is of a kindred nature to that allowing an appeal from an order relating to a temporary injunction. The purpose of such provisions is remedial. It is to provide a review of orders which although not final do affect substantial rights, and such provisions should be liberally construed to affect the legislative intent. An appeal lies in this case.

¶15 The first assignment of error made by the appellant, is to the action of the court in overruling his motion to set aside the notice given him to appear and answer the information filed against him.

¶16 He contends that this is a civil proceeding, and is governed by the provisions of the code of civil procedure with reference to summons in the matter of time allowed to answer, and as the answer day in a civil proceding ordinarily must be twenty days after the return day of the summons, that he should not be required to answer the information in less than twenty days after the service of notice.

¶17 That this is a civil proceeding is no doubt correct, although there are authorities to the contrary.

¶18 In the case of Ex parte Wall, 107 U.S. 265, 27 L. Ed. 552, 2 S. Ct. 569, the supreme court, in speaking of this question, said:

"The proceeding is in its nature civil, and collateral to any criminal prosecution by indictment. The proceeding is not for the purpose of punishment, but for the purpose of preserving the courts of justice from the official ministration of persons unfit to practice in them."

¶19 In the case of The People, ex rel. Shufeldt, vs. Barker, 56 Ill. 299, the supreme court of that state, with reference to such a proceeding, said:

"The respondent, in express terms, denies the charge exhibited against him, and to overcome this express denial there ought to be required more than a mere preponderance of evidence. A charge so grave in its character, and so fatal in its consequences, ought, certainly, to be proved by what the law denominates a clear preponderance of the evidence."

¶20 Those courts recognize in this rule, as we believe, that the proceeding is a civil one and not a criminal one.

¶21 By statute in Indiana and Pennsylvania this class of proceeding is denominated a civil proceeding.

¶22 But, from the fact that the proceeding is a civil and not a criminal one in its nature, it does not follow that it is in all respects governed by the code of civil procedure. An action in mandamus is a civil proceeding, but the defendant may be required to answer or show cause why the order should not run against him in much less than the twenty days usually allowed for him to put in his defense. The statute provides a different procedure in that class of cases. So, too, in this, the statute has provided a different rule.

¶23 Section 325, of the statutes of 1893, provides, that:

"Any court of record may revoke or suspend the license of an attorney or counselor at law to practice therein, but not until a copy of the charges against him shall have been delivered to him by the clerk of the court in which the proceedings shall have been made, and an opportunity shalt have been given to him to be heard in his defense."

¶24 Was it contemplated by this that twenty days time must be given to answer? We think not, but simply that a copy of the charges shall be given to the person sought to be suspended or disbarred, and a reasonable opportunity, under the...

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