In re Griffin

• Decision Date: 10 December 1903
• Citation: 69 N.E. 192,33 Ind.App. 153
• Parties: In re GRIFFIN.
• Court: Indiana Appellate Court

33 Ind.App. 153

69 N.E. 192

In re GRIFFIN.¹

Appellate Court of Indiana, Division No. 1.

Dec. 10, 1903.

Appeal from Circuit Court, Hamilton County; J. F. Neal, Judge.

Proceedings for the disbarment of Samuel W. Griffin from the practice of law. From a judgment of disbarment, defendant appeals. Reversed.

Shirts & Fertig, for appellant. Theo. P. Davis and Ralph K. Kane, for appellee.

HENLEY, C. J.

This was a proceeding commenced by certain attorneys appointed by the judge of the Hamilton circuit court to disbar appellant from the practice of law. The proceeding was commenced under section 988, Burns' Rev. St. 1901, which is as follows: “The proceedings to remove or suspend an attorney may be commenced by the direction of the court or on motion of an individual. In the former case the court must direct some attorney to draw up and prosecute the accusation; in the latter case it may be drawn up by any person and sworn to by the person making it. Such accusation may be filed in any court in which the attorney practices; and after five days' notice of the filing, the attorney shall be bound to appear and plead to the same or suffer judgment by default. If he appear pleadings may be filed and trial had as in other cases.” The accusation, in this case, consisted of 18 specifications. A demurrer was sustained to the first and second; the tenth and fourteenth were dismissed by the accusers at the trial; and the eighth, ninth, eleventh, twelfth, thirteenth, and fifteenth specifications were dismissed on appellant's motion. The case was tried upon the fourth, fifth, sixth, seventh, sixteenth, seventeenth, and eighteenth specifications of charges, upon issues made by an answer of general denial, and an answer of former adjudication as to the sixth, seventeenth, and eighteenth specifications. The cause was submitted to trial by the court and jury, who found the appellant guilty of all the charges preferred; whereupon the court rendered a judgment on the verdict that “appellant be disbarred from the practice of law, now and henceforth, in the state of Indiana.”

One of the specifications of appellant's assignment of errors in this court is that the trial court erred in overruling his motion for a new trial. Two of the causes stated in appellant's motion for a new trial are that the trial court erred in overruling appellant's motion for change of venue from the county and his motion for a change of venue from the judge. Each of these motions should have been sustained, and we think it matters not in arriving at this conclusion whether we regard this proceeding as a civil action or as a special proceeding. Regarding it as a special proceeding, appellant would have all the rights granted in civil actions, unless and except the statute providing for this action specially otherwise provided. Weakley v. Wolf, 148 Ind. 220, 47 N. E. 470. In the case cited the court said: “But it is said that this is a special proceeding, and not a civil action, and that the statute under which the proceeding is brought does not provide for change of venue. In the early decisions there seems to have been a disposition to refuse changes of venue in all special proceedings where the special statute giving the right of action did not provide for such change; but our later decisions have extended the general provisions of the Code to such special proceedings, in so far as the particular statutes have not provided a different or inconsistent procedure of their own.” In consonance with this rule the Supreme Court have held that changes of venue should be granted in applications for liquor licenses, in bastardy proceedings, in claims against decedents' estates, in actions to determine the question of suretyship, proceedings supplementary to execution, drainage proceedings, and to establish guardianships. Berry v. Berry, 147 Ind. 176, 46 N. E. 470;Bass v. Elliott, 105 Ind. 517, 5 N. E. 663;Evans v. Evans, 105 Ind. 204, 5 N. E. 24, 768;Burkett v. Bowen, 104 Ind. 184, 3 N. E. 768;Williams v. Fleenor, 77 Ind. 36;Lester v. Lester, 70 Ind. 201; Saint v. State, 68 Ind. 148; State v. Vierling, 33 Ind. 99.

It will be observed that the statute under which this proceeding is...