In re Evans

• Decision Date: 30 January 1913
• Docket Number: 1227
• Citation: 42 Utah 282,130 P. 217
• Court: Utah Supreme Court
• Parties: In re EVANS et al

130 P. 217

42 Utah 282

In re EVANS et al

No. 1227

Supreme Court of Utah

January 30, 1913

[Copyrighted Material Omitted]

Petition of David Evans and Lindsay R. Rogers for a rehearing and a review and re-examination of the record and judgment in proceedings for their disbarment.

For former judgment see 22 Utah 366, 62 P. 913, 53 L. R. A. 952 83 Am. St. Rep. 794.

JUDGMENT OF DISBARMENT VACATED.

Ogden Hiles and C. C. Dey for petitioners.

Waldemar Van Cott and E. B. Critchlow, amici curiae.

STRAUP J. McCARTY, C. J., FRICK, J., concurring.

OPINION

STRAUP, J.

In May, 1900, an information or accusation was filed in this court to disbar David Evans and L. R. Rogers, members of the bar of this court, who theretofore were copartners in the practice of the law at Ogden, Utah. The matter was referred to a master or referee, who took the testimony and reported findings which exonerated Evans and Rogers of the charge. After a submission of the cause on the findings and the record, the court made additional findings, upon which, and the conclusions stated upon them, Evans and Rogers were adjudged guilty and deprived of the right to practice in any of the courts of this state until they paid into court the sum of $ 1793 for the use and benefit of one Mrs. Nellie Nelson and her minor children, the costs of the proceedings, $ 175 referee's fee, and a stenographer's fee of fifty-four dollars. It was further adjudged that, upon their failure to pay such sums within sixty days, they be permanently disbarred and their names stricken from the roll of attorneys. The case, In re Evans & Rogers, is reported in 22 Utah 366, 62 P. 913, 53 L. R. A. 952, 83 Am. St. Rep. 794, where the findings of the referee, the additional findings of the court, and its opinion and the judgment are set forth. Upon the filing of the decision Evans and Rogers complied with the order by paying the moneys as directed, and there the matter was at rest until in April, 1912, when they filed a verified petition in this court for a rehearing and a review and re-examination of the record and the judgment. The Attorney-General, and counsel theretofore appointed in the former proceedings as friends of the court and to conduct the prosecution, by written stipulation, consented that the petition, if the court were so advised, be entertained. Such counsel were thereupon reappointed by us as friends of the court. Upon their request that they be relieved from further participation in the matter, we appointed other counsel for such purpose, who consented to act, and who have rendered us much assistance.

The petition sets forth the former proceedings, the findings of the referee, the additional findings of the court, portions of its opinion, and the judgment. It is further averred that there are manifest errors apparent on the face of the record and judgment, in the particulars that the additional findings made by the court are inconsistent with each other; that material portions of such findings, as appear on the face of them, are based, not on the evidence, but upon misapplied legal fictions, and were made by a resort to methods at variance with the forms and practice of the court and contrary to law, and that they do not support the judgment; that upon the face of the findings the petitioners were not guilty of the charge; that the court adjudged them guilty of matters not within the issues, and upon which they had not had their day in court; and that the petitioners, since the rendition of the judgment, removed to the State of California, where Evans resumed the practice of the law, and where Rogers intends to do so, and that the judgment and the opinion, as they now stand, impeach and prejudice, and will continue to impeach and prejudice, their good name and their social and professional standing, and hinder and embarrass, and will continue to hinder and embarrass, them in obtaining business and employment, especially in California and elsewhere, where the circumstances of the controversy are not known as they are in Utah. For these reasons the petitioners pray for a rehearing and re-examination of the record, and for an annulment or a modification of the judgment.

At the threshold counsel amici curiae advise us that, in their opinion, we are without jurisdiction or power to now review the record, or to set aside or modify the judgment; for, while the proceedings resulting in the judgment complained of were special and summary, nevertheless, the judgment is res adjudicata of the whole issue, and cannot be inquired into, except on a motion for new trial or rehearing as by law provided for rehearing of causes, or for legal reasons for maintaining a bill in the nature of a review which, as they advise us, are not sufficiently made to appear. Our attention, therefore, is called to the statute permitting the filing of petitions for a rehearing of causes determined by us on appeal, our rules requiring such a petition to be filed within twenty days after the filing of the opinion, and to the failure of the petitioners thereunder to invoke the action of the court, as they, within such time, might have done, and upon these considerations are we advised that they should not now be heard to complain and be permitted to invoke such action more than eleven years after the rendition of the judgment. We are further advised that if the petition be regarded as in the nature of a bill of review, and as designed to invoke in the broadest and most comprehensive manner all the powers possessed by us to correct error, nevertheless, since it is not grounded on newly discovered matter arising since the judgment, nor upon fraud, but on error, not of law appearing on the face of the record, but of fact and alleged errors resulting from a misconception or misapplication of the evidence, or conclusions deduced therefrom, the petition cannot be entertained on that theory.

On the other hand, it is contended by counsel for petitioners that the petition invokes the summary jurisdiction of the court, and not its original or appellate jurisdiction in respect of either its common law or equity jurisdiction, and therefore the general rules of criminal and civil procedure prescribed by the Code do not apply, and that such summary jurisdiction over its officers is inherent in the court and exists of necessity; that the exercise of such a jurisdiction is wholly different from that of the ordinary common law and equity jurisdiction, and, in the absence of direct legislative enactments or constitutional provisions, such summary jurisdiction may be exercised and such procedure adopted and such remedies applied as, of necessity, may be required to protect the integrity and dignity of the court and its officers in respect of matters wholly between the court and them; and that within such limitations the power of the court is complete, continuing, and plenary. Counsel for petitioners further contend that, though the petition be regarded as in the nature of a bill of review, yet, as alleged in the petition, there are manifest errors of law appearing on the face of the record for which not only such a bill will lie, but which also render the judgment a nullity, and subject to both direct and collateral attack.

Before passing to a consideration of these divergent views, it may be well first to notice, as have counsel, the nature and substance of the accusation and the admitted transactions as disclosed by the record out of which it arose, the findings of the referee, and the additional findings of the court upon which the judgment was based. In 1892 Charles A. Nelson, then a resident of Nevada, while transporting and accompanying live stock on a train of the Southern Pacific Railway Company, was, near Truckee, Cal., knocked off the train in a snow-shed and killed. He left surviving him a widow and two minor children, also then residing in Nevada. Shortly thereafter they moved to Oakland, Cal. One of the deceased's brothers, Alfred H. Nelson, was a lawyer practicing his profession at Ogden, Utah. Another brother Thomas Nelson, resided in Nevada. The widow communicated with Alfred, and employed him to inquire into the circumstances attendant upon the accident, and authorized him to employ such other counsel, and on such terms, as he thought proper to protect her interests, and to prosecute an action against the railway company for damages. Alfred consulted the petitioners, Evans & Rogers, a firm of lawyers of long experience and in active practice at Ogden, especially in the trial of causes. Upon such consultation, and upon the conclusion reached that a meritorious cause of action existed against the company and in favor of the widow and minor children, Alfred, in virtue of his authority from the widow, employed Evans & Rogers to assist him in the prosecution of such an action. The terms of the employment, as to attorney's fees, were a contingent fee of fifty per cent. of whatever amount might be recovered in the action, of which Evans & Rogers were to receive two-thirds and Alfred one-third; but, as Alfred was not an experienced lawyer in the trial of causes, it was agreed that his share of the labor in the litigation should mainly be to procure the attendance of witnesses, some of whom were beyond the jurisdiction of the court, or to obtain their depositions. It was also decided to commence the suit in the Utah courts at Ogden. As Mrs. Nelson resided in Oakland, and for convenience in the conduct of the business, Alfred was appointed administrator of the estate of the deceased by the probate court at Ogden. Thereafter the suit, in the name of the administrator against the railway company, was commenced in the district court at Ogden. The litigation which ensued was long and laborious. The case was tried...