In re Eaton

• Decision Date: 05 February 1895
• Citation: 62 N.W. 597,4 N.D. 514
• Parties: In re EATON.
• Court: North Dakota Supreme Court

4 N.D. 514

62 N.W. 597

In re EATON.

Supreme Court of North Dakota.

Feb. 5, 1895.

Syllabus by the Court.

1. Where the statute enumerates grounds for the disbarment of an attorney, no other grounds can be considered by the court.

2. Evidence in this case considered, and held insufficient to warrant the finding of any fact that is ground for disbarment under the statute in force in this state.

Appeal from district court, Grand Forks county; Charles F. Templeton, Judge.

Robert A. Eaton, an attorney at law, having been disbarred by proceedings for that purpose, appeals. Reversed.Cochrane & Feetham and N. C. Young, for appellant. R. M. Carothers and J. B. Wineman, for the proceedings.

BARTHOLOMEW, J.

This was a proceeding for the disbarment of a duly-licensed attorney at law residing and practicing his profession at Grand Forks, in the First district. Four specific charges were made against defendant in the district court of Grand Forks county. It appears that defendant, as attorney for the receivers of the National Cordage Company (hereafter we will not mention the receivers), brought an action aided by attachment against Mast, Buford & Burwell Company, a Minnesota corporation, to recover a large sum of money. The papers and correspondence in the case are signed “Eaton & Higbee,” but Mr. Higbee, as we understand, resided in another district, and had no personal relation whatever to the case, and we shall not connect him with it further. The defendant in the action, by Messrs. Bangs & Fisk, its attorneys, served notice of a motion to discharge the attachment. Hon. C. F. Templeton, judge of the First district, issued the order for hearing on the motion, but he was subsequently taken sick, and the motion was heard at the office of Bangs & Fisk, in Grand Forks, before Hon. D. E. Morgan, judge of the Second district, acting for Judge Templeton. All the charges are connected with the hearing of this motion, and, briefly stated, are as follows: 1. That on January 13, 1894, at Grand Forks, etc., the defendant, Robert A. Eaton, committed falsehood in the court, and before a judge thereof, by stating that he did not know the whereabouts of a certain affidavit pertaining to the motion then on hearing, which statement he well knew to be false; (2) that at the same time and place the defendant was guilty of practicing deceit upon the court, and falsifying evidence to be produced before the court, by seeking to establish his standing in court by an affidavit of service made by one Squires, of St. Paul, Minn., which affidavit stated, among other things, that the complaint in the action of the Cordage Company vs. Mast, Buford & Burwell Company had been served upon the defendant in said action, when in fact said complaint had not been served, and said Eaton well knew it had not been served; (3) that the defendant was further guilty of deceit upon the court in that at the said date, and at Grand Forks, the defendant took from the files of the office of the clerk of the court an affidavit of service in the case before mentioned, which affidavit had been regularly filed with the said clerk, and substituted another and different affidavit, some of the allegations of which he well knew to be untrue, particularly the allegation concerning the service of the complaint as mentioned in the preceding charge; (4) that said Eaton is guilty of willfully destroying, defacing, altering, falsifying, and fraudulently removing and secreting a paper filed and deposited in a public office, to wit, the affidavit of service which was removed from the files of the clerk of the court, as stated in the third charge. These charges, when presented to the court, were based exclusively upon the joint affidavit of Mr. Bangs and Mr. Fisk, and an affidavit of George C. Squires and L. K. Hassell, the clerk of the court. Mr. Squires is an attorney, who originally held the claim against Mast, Buford & Burwell Company, and who placed it in the hands of a collection agency, by whom it was sent to Mr. Eaton, at Grand Forks. When these charges were presented, the court, as we understand the record, ordered their prosecution in due form.

The proceeding is special, but highly criminal in its nature. Section 473, Comp. Laws, reads as follows: “The following are sufficient causes for revocation or suspension: 1. When he has been convicted of a felony, or of a misdemeanor involving moral turpitude,in either of which cases the record of conviction is conclusive evidence. 2. When he is guilty of a willful disobedience or violation of the order of the court, requiring him to do or forbear an act connected with, or in the course of, his profession. 3. For a willful violation of any of the duties of an attorney or counselor as hereinbefore prescribed. 4. For doing any other act to which such a consequence is by law attached, or upon conviction for any of the offenses mentioned in sections 6400, 6403, 6410 and 6411 of the Penal Code.” An examination of the charges in this case discovers that they can come only under subdivision 3 of that section. Under subdivision 3 of section 465, a portion of the duties of an attorney are declared to be “to employ for the purpose of maintaining the causes confided to him, such means only as are consistent with truth, and never to seek to mislead the judges by any artifice or false statement of law or fact.” The statutory proceedings for disbarment or suspension will be found in the section following (section 473). The trial is by the court. The answer is “guilty” or “not guilty.” An acquittal in the trial court is final, but upon conviction in the lower court the defendant may appeal to the supreme court. In the trial court all the evidence must be reduced to writing, and filed and preserved; and in case of an appeal it all goes to the supreme court, to be “there considered and finally acted upon.” We think the reasons which induced the legislature to make this proceeding an exception to the general rule, and require the supreme court to pass upon the facts, are readily discovered. Disbarment proceedings always attract local interest, and arouse local feelings and prejudices. The sacred character of the trust confided to an attorney, as well as the nature of the oath that he takes, fully justify the average judgment of mankind in demanding and expecting of him an exceptionally high standard of personal and professional integrity. A suspicion, much more a sworn allegation, of professional misconduct on the part of an attorney, at once makes him an object of dislike, reprobation, and contempt in the community in which he lives. The public pulse is extremely sensitive on that point, and we would not have it otherwise. The legislature doubtless concluded that cases might arise when the ends of justice would require that the facts be reviewed by a tribunal where local prejudices, all the more dangerous when unperceived and unrecognized, could by no possibility affect the result.

While the result of a conviction in cases of this nature, in so far as the defendant is concerned, is purely punitory, yet the purpose of the proceeding is the protection of the court and the high character of the bar. Hence we should not invoke the strict rules of evidence in criminal cases, that require all material facts to be established beyond reasonable doubt. Further, learned counsel for the prosecution having raised the question in this court that, in so far as the statute authorized a hearing de novo in this court, it is inconsistent with the appellate character of this court as fixed by the subsequently adopted constitution, and hence no longer in force, we shall, without deciding the point raised, treat this case as an ordinary appeal in a case tried by the court when there are exceptions to the findings of fact, which counsel admits we can properly do on the record as it stands. Thus taking the case, counsel invokes, in support of the judgment below, the rule so often discussed, that requires us to affirm in cases when the findings are supported by any legal evidence. The rule established by this court is, perhaps, somewhat broader than the general rule. Under our statutes we have declared it to be our duty to reverse a finding, based upon written evidence, when it reasonably appears that the finding is against the weight of the evidence; and when the finding is based upon parol evidence we will reverse the same when, after supplementing the evidence, with all the inferences and impressions that may legitimately be drawn from personal observation of the witness, it yet appears that the finding is clearly against the preponderance of the evidence. The fact that there may be some evidence to support the finding, is not conclusive in this jurisdiction. Jasper v. Hazen, 4 N. D. ---, 58 N. W. 454. And we certainly think these rules should apply in a case when a judgment adverse to defendant deprives him of the right to exercise his profession, which is to him a personal and property right (In re Houghton [Cal.] 8 Pac. 57), and demolishes a reputation and standing that has been earned by years of application and probity.

There was in this case a finding of fact upon each charge, the findings being indentical in effect, and largely identical in language, with the charge. Each finding was excepted to as not being warranted by the evidence. It is to the credit of the defendant that counsel for the prosecution frankly admits in oral argument that the personal character of defendant is, so far as counsel knows, above reproach; thus fortifying the legal presumption of good moral character with which the law clothes every man, with a solemn admission. The defendant, in his capacity as a witness, stands before the court as one entitled to credence, and whose testimony may not be disregarded, unless contradicted by some other witness or witnesses, or by some admitted or established fact in the case. We have carefully considered the evidence, and reach...