In Re Ebbs.

• Decision Date: 22 December 1908
• Citation: 150 N.C. 44,63 S.E. 190
• Court: North Carolina Supreme Court
• Parties: In re EBBS.

63 S.E. 190

150 N.C. 44

In re EBBS.

Supreme Court of North Carolina.

Dec. 22, 1908.

1. Attoeney and Client (§ 49^*)—Proceedings to Disbar Attorney—Nature.

Proceeding to disbar an attorney under Pub. Laws 1907, p. 1342, c. 941, providing that an attorney must be disbarred for certain offenses, and that the proceeding shall be instituted and prosecuted only by the committee on grievances of the State Bar Association, is not a criminal action, but is in the nature of a civil proceeding.

[Ed. Note.—For other cases, see Attorney and Client, Cent. Dig. § 48; Dec. Dig. § 49.*]

2. Judgment (§ 822*)—Res Judicata—Conviction in Another Jueisdiction—Effect in Civil Suit.

A record of conviction in a criminal action in another jurisdiction is not conclusive evidence of guilt in a civil proceeding.

[Ed. Note.—For other cases, see Judgment, Dec. Dig. § 822.*]

3. Statutes (§ 241*)—Construction—Penalties—Refeeence to Acts Done in State.

It is the natural interpretation of statutes creating offenses and defining conduct which is indictable or subject to penalties to refer them solely to the commission of acts within the state; the states acting within their own territorial limits.

[Ed. Note.—For other cases, see Statutes, Cent. Dig. §§ 322, 323; Dec. Dig. § 241.*]

4. Attorney and Client (§ 30^*)—Disbarment of Attorney "Convicted" of Crime —Construction of Statute.

Pub. Laws 1907, p. 1342, c. 941, § 1, providing that an attorney must be disbarred upon his being "convicted" of a crime, etc., refers only to convictions in the state.

[Ed. Note.—For other cases, see Attorney and Client, Cent. Dig. § 52; Dec. Dig. § 39.*

For other definitions, see Words and Phrases, vol. 2, pp. 1584-1591.]

5. Attorney and Client (§ 39*)—Disbarment of Attorney "Convicted" of Crime —Construction of Statute.

Revisal 1905, § 211, providing that no attorney shall be disbarred unless he shall have been "convicted or in open court confessed his guilt of some criminal offense, " etc., refers only to convictions in the state.

[Ed. Note.—For other cases, see Attorney and Client, Cent. Dig. § 52; Dec. Dig. § 39.*]

6. Attorney and Client (§ 36*)—Disbarment of Attorney—Power of Court in Absence of Statute.

In the absence of restrictive legislation, the courts have inherent power to strike from their rolls names of attorneys who are found by reason of misconduct to be unfit members.

[Ed. Note.—For other cases, see Attorney and Client, Cent. Dig. § 49; Dec. Dig. § 36.*]

7. Attorney and.Client (§ 36*)—Disbarment op Attorney—Right of Court—Construction of Statute.

Notwithstanding the restrictions placed upon courts in disbarring attorneys by Revisal 1905, § 211, providing that no attorney shall be disbarred unless he has been convicted, or in open court has confessed his guilt, of a crime showing him unlit to discharge the duties of an attorney, courts have power to protect themselves and their suitors from indignity, fraud, or malpractice of any court officers in the discharge of their official duty; it only being restricted in disbarring for crimes which seriously affect their moral character, but have no direct connection with their practical and immediate relation to the courts, to cases where there have been convictions of the class of crimes named in the statute.

[Ed. Note.—For other cases, see Attorney and Client, Cent. Dig. § 49; Dec. Dig. § 30.*]

8. Attorney and Client (§ 53*)—Proceedings for Disbarment of Attorney—Admissibility of Evidence.

In proceedings to disbar an attorney, if the court had power to disbar for violation of the oath to "honestly demean himself in the practice of an attorney, " the record of his conviction for forgery in another state since he received his attorney's license would be admissible to show dishonest and criminal conduct.

[Ed. Note.—For other cases, see Attorney and Client, Cent. Dig. § 74; Dec. Dig. § 53.*]

9. Attorney and Client (§ 54*)—Proceedings to Disbar—Effect of Demurrer to Evidence.

In a proceeding to disbar an attorney under Pub. Laws 1907, p. 1342, c. 941, § 1, providing that an attorney must be disbarred upon his being convicted of a crime, etc., respondent not being permitted to offer any defense, his demurrer to the evidence, which was not allowable, did not admit his guilt of a crime shown by the evidence.

[Ed. Note.—For other cases, see Attorney and Client, Dec. Dig. § 54.*]

Clark, C. J., and Brown, J., dissenting.

Appeal from Superior Court, Buncombe County; Peebles, Judge.

Proceedings for the disbarment of I. N. Ebbs, an attorney at law. There was a judgment of disbarment and respondent appeals. Reversed and remanded.

Pursuant to the provisions of chapter 941, p. 1342, Pub. Laws 1907, the committee on grievances of the North Carolina Bar Association, filed with the solicitor of the Fifteenth judicial district an accusation stating that, upon investigation of certain charges preferred before them against I. N. Ebbs, a licensed attorney and member of the bar of the state, residing in said district, the said committee were of the opinion that said charges should be further Investigated by the court, as provided by the statute. A copy of the charges and the records upon which they were founded accompanied the report. The solicitor thereupon caused the report and the records, together with an accusation preferred by himself, embodied in the report, to be served on said attorney. Hon. R. B. Peebles, judge presiding, thereupon made an order reciting the proceedings had before the committee, directing the said I. N. Ebbs to appear before him at Asheville, N. C, on a day named, and answer said charges. On the return day the said I. N. Ebbs duly appeared, being represented by counsel. The committee was represented by the solicitor of the district and other counsel. The accusation was founded upon certified records from the Circuit Court of the United States, Eastern District of Louisiana, showing a bill of indictment returned by the grand jury, charging respondent with forgery in six counts. The specific acts charged consisted in unlawfully, falsely, and feloniously forging and altering certain receipts, accounts, etc., with intent to defraud the United States. Upon a trial before said court, respondent was convicted upon all of the counts except the first, and sentenced to imprisonment in the parish prison of the parish of New Orleans for the term of 90 days, and to pay a fine of $1,000. Respondent demurred to the evidence as follows: "The respondent, I. N. Ebbs, with leave of court, objects to the sufficiency of the accusation preferred by the solicitor for the state as amended in the above-entitled proceeding, and says: (1) The said accusation contained no cause for the disbarment of respondent except on allegation of a conviction of the defendant of a crime alleged to be punishable in the penitentiary before and by the United States District Court for the Eastern District of Louisiana. (2) That said accusation does not charge this respondent with having been convicted of any crime since the passage of chapter 941, p. 1342, Pub. Laws N. C, passed in the year 1907. (3) That the only conviction alleged in said accusation is a conviction for an offense not punishable in the penitentiary by the laws of North Carolina, even if the offense had been committedwithin the state of North Carolina." His honor overruled the demurrer, and rendered the following judgment: "It is ordered, adjudged, and decreed that the said I. N. Ebbs be, and he is hereby, disbarred as an attorney at law from the practice as an attorney and counselor in the courts of this state, and that the name of the said I. N. Ebbs be stricken from the roll of the practicing attorneys of the courts of this state, and that he henceforth be denied any and all the rights or privileges of an attorney and counselor in the courts of the state of North Carolina. The clerk of this court is hereby ordered to send a certified copy of this judgment to the clerk of the superior court of Madison county, N. C, and the clerk of Madison county will enter the same in the judgment docket of his court." Respondent excepted and appealed.

Adams & Adams and J. M. Gudger, Sr., for appellant.

Hayden Clement, Asst. Atty. Gen., for the State.

CONNOR, J. Because of the novelty of the question raised by the demurrer of the respondent and the importance to the public welfare of the correct interpretation of the statute under which this proceeding was instituted, we have given the record a careful and anxious consideration. St. 1907 (Pub. Laws, p. 1342) c. 941, was enacted at the instance of the State Bar Association for the purpose of enabling it to more effectually discharge its duty to the people of the state, the courts, and the bar by excluding from the profession unworthy members. This is the first instance in which the courts have been called upon to interpret and enforce its provisions. Section 1 provides: "That an attorney at law must be disbarred and removed for the following causes: (a) Upon his being convicted of a crime punishable by imprisonment in the penitentiary, (b) When any judgment is rendered against him for money collected by him as an attorney and retained by him without any bona fide claim thereto or any part thereof." Section 2 provides that an attorney at law may be disbarred, etc., naming two causes. The motion to disbar the respondent is based upon the first section. It will be observed that among the several causes for which an attorney must or may be disbarred this is the only one in which the court is required to act upon a record, and the respondent is not permitted to offer anything by way of defense or exculpation. The court cannot inquire into his guilt. The production of the record, showing a conviction, makes it the imperative duty of the court to disbar him. Without expressing any opinion as to the wisdom of so drastic a statute, we are not permitted to enlarge its terms by construction. The respondent says that by a recognized canon of construction the...