In re Kirby

• Decision Date: 19 January 1898
• Citation: 84 F. 606
• Parties: In re KIRBY.
• Court: U.S. District Court — District of South Dakota

84 F. 606

In re KIRBY.

United States District Court, D. South Dakota.

January 19, 1898

S. B Van Buskirk, for petitioners.

Joe Kirby, in pro per.

CARLAND District Judge.

On January 7, 1898, J. D. Elliott, United States attorney for this district, filed in this court his sworn petition wherein it is charged that Joe Kirby, an attorney of this court, was at the April, 1897, term of said court duly convicted upon an indictment charging said Joe Kirby with having received and had in his possession and control, with intent to convert the same to his own use, certain postage stamps of the United States, he (the said Kirby) knowing the same to have been theretofore feloniously stolen and carried away from a certain post office of the United States; that on June 25, 1897, being a day of said April term, said Joe Kirby was duly sentenced upon said conviction to a term of two years in the penitentiary of South Dakota. Said petition prayed the judgment of this court in the premises, and that said Joe Kirby be disbarred and removed from his office as an attorney of this court. Upon the filing of said petition said Joe Kirby was cited to appear before this court on the 17th day of January, 1898, and show cause why the prayer of the petition should not be granted. On the return day respondent appeared in his own behalf, and S. B. Van Buskirk assistant United States attorney, in support of the petition.

Respondent first objected to the jurisdiction of the court on the ground that the matter charged against him could not be heard except at a special or general term of this court, and then filed an answer denying generally the allegations of the petition, except as said allegations might be admitted by other matters set forth in the answer. The answer then set forth that a writ of error had been sued out of the supreme court of the United States to reverse the judgment of conviction set forth in the petition, and that a supersedeas had been granted pending the decision of said supreme court, which writ of error was still pending and undetermined. A certified copy of the proceedings of this court in the case of the United States against Joe Kirby was introduced in evidence in support of the petition, from which it appears that the allegations of the petition are true. This court will take judicial notice, upon its attention being called thereto, of the issuance of the writ of error and the granting of a supersedeas. No other evidence was introduced on either side.

Respondent contends that the petition should be dismissed for the following reasons: (1) The court has no jurisdiction, for the reasons stated in the opening of the case in regard to the terms of court. (2) The offense of which respondent was convicted is not a felony. (3) The suing out of a writ of error and the granting of a supersedeas have rendered the judgment of conviction inoperative for any purpose, pending the hearing on said writ.

There is no force in the first point, as the record of the court shows that the regular October, 1897, term of this court had been regularly adjourned from time to time until the date of the hearing herein mentioned.

In considering the second point, it may be well to consider briefly the power of this court over its attorneys after it has once admitted them to practice before it. In Ex parte Wall, 107 U.S. 273, 2 Sup.Ct. 575, the supreme court said:

'It is laid down in all the books in which the subject is treated that a court has power to exercise a summary jurisdiction over its attorneys to compel them to act honestly towards their clients, and to punish them by fine and imprisonment for misconduct and contempts, and in gross cases of misconduct to strike their names from the roll. If regularly convicted of a felony, an attorney will be struck off the roll as of course, whatever the felony may be, because he is rendered infamous. If convicted of a misdemeanor, which imports fraud or dishonesty, the same course will be taken.'

There is no statutory definition of felonies in the legislation of the United States. Reagan v. U.S., 157 U.S. 303, 15 Sup.Ct. 610. The supreme court has held, however, in Ex parte...