In re Mayberry

• Citation: 3 N.E.2d 248,295 Mass. 155
• Parties: In re MAYBERRY.
• Decision Date: 09 July 1936
• Court: United States State Supreme Judicial Court of Massachusetts

295 Mass. 155

3 N.E.2d 248

In re MAYBERRY.

Supreme Judicial Court of Massachusetts, Suffolk.

July 9, 1936.

Exceptions from Supreme Judicial Court, Suffolk County.

Proceeding for disbarment of Lowell A. Mayberry. A trial before a single justice in the Supreme Judicial Court resulted in an order that judgment be entered removing respondent from the office of attorney at law. On exceptions saved by respondent.

Exceptions overruled.C. C. Cabot and J. A. McArdle, both of Boston, appointed by the court to conduct the proceedings.

G. L. Mayberry, H. Albers, and A. L. Brown, all of Boston, for respondent.

QUA, Justice.

This proceeding, in so far as it directly affects the present respondent, originated in the ‘fourteenth report’ of a special commissioner appointed by this court upon a petition filed on behalf of a committee of citizens of the commonwealth. The nature of the petition and the action of the court upon it are sufficiently set forth in Re Keenan, 287 Mass. 577, 578, 192 N.E. 65, 96 A.L.R. 679. See, also, 287 Mass. pages 585-587, 192 N.E. 69, 70,96 A.L.R. 684-686. In said fourteenth report the commissioner found that the respondent conspired with one Donnelly to influence improperly jurors in certain named cases and recommended that an order of notice be issued by the court to the respondent requiring him to show cause why he should not be disbarred. Before the trial the commissioner filed a ‘supplemental fourteenth report’ containing further details as to the cases and the names of the persons involved.

In September, 1933, a trial was had on those reports before a single justice of this court, who on October 5, 1933, entered an ‘order for judgment’ reciting that cause for disbarment or discipline was not established and ordering that the proceeding against the respondent ‘be, and the same is hereby dismissed.’ Thereafter on October 27, 1933, the commissioner filed a ‘second supplementary report’ alleging that subsequent to the hearing certain testimony not theretofore available had been produced before him which in his judgment was so material to the inquiry that he deemed it his duty to inform the court thereof, so that the court might consider ‘whether the inquiry should be reopened for further information in the premises.’ A transcript of the testimony referred to in this report was filed with the clerk. On October 2, 1934, the commissioner filed a ‘third supplementary report’ setting forth that Donnelly, whom the respondent admitted having employed at various times, but who could not be found to testify at the first hearing, was now in prison and available, and that certain jurors alleged to have been corrupted could identify him in court, and praying for an order ‘reopening the hearing * * * or such other order as the Court shall deem expedient in the interests of the public welfare.’ Thereupon, on December 13, 1934, after a hearing, the single justice entered an ‘order vacating order for judgment’ wherein ‘the order for judgment * * * entered October 5, 1933,’ was vacated and said fourteenth report and the three supplementary reports were ‘assigned for hearing de novo.’ The second trial before the single justice resulted in an order that judgment be entered removing the respondent from the office of attorney at law.

1. The respondent raises at the outset a question of jurisdiction. No such issue appears to have been suggested at the trial, but nevertheless it is fundamental in its bearing upon the power of the court to proceed with the cause and it may be urged here for the first time. Cheney v. Boston & Maine Railroad, 227 Mass. 336, 116 N.E. 411;A. Sandler Co. v. Portland Shoe Mfg. Co. (Mass.) 197 N.E. 1. The contention is that the order of October 5, 1933, dismissing the proceeding against the respondent was in itself a final judgment in his favor (see In re Keenan, 287 Mass. 577, 582, 192 N.E. 65, 96 A.L.R. 679) which exhausted the jurisdiction of the court, and that all that followed, including the ‘order vacating order for judgment’ of December 13, 1934, and the second trial, was of no effect.

This contention cannot prevail. In Bar Association of Boston v. Casey, 204 Mass. 331, at page 335, 90 N.E. 584, this court held that an order for disbarment couched in equally strong terms of present finality was not a judgment which ended the jurisdiction of the court under what is now G.L. (Ter.Ed.) c. 235, § 1, but that it was only an order for judgment. In this court proceedings at law, even though ripe for judgment, do not go to judgment automatically at stated intervals. A motion for judgment or a general or special order is necessary. G.L.(Ter.Ed.) c. 235, § 1. See Common Law Rule 8 (1926); Bailey v. Edmundson, 168 Mass. 297, 299, 46 N.E. 1064. See, however, as to judgments by default G.L.(Ter.Ed.) c. 231, § 57. Hence, if this case did not go to judgment on October 5, 1933, there is nothing to show that it went to judgment on any subsequent date, and the later action of the court in vacating the order of October 5 and in ordering a hearing de novo was a step in the further progress of the case which the court had power to take and as to which no error is shown. McKinley v. Warren, 218 Mass. 310, 105 N.E. 990;Kolda v. National Ben Franklin Fire Ins. Co. (Mass.) 195 N.E. 331. We do not decide whether in a case of this kind any one opposed to the respondent had on October 5, 1933, any right to file exceptions under G.L. (Ter.Ed.) c. 231, § 113, which also prevented the case from going to judgment in favor of the respondent on that day. See Everett-Morgan Co. v. Boyajian Pharmacy, 244 Mass. 460, 139 N.E. 170;Grievance Committee v. Broder, 112 Conn. 269, 273,152 A. 292;In re Dolphin, 240 N.Y. 89, 147 N.E. 538;Kline v. Shapley, 232 Mass. 500, 503, 122 N.E. 641.

But we need not rest this decision upon technical niceties of practice, for even if the order of October 5, 1933, had been a final judgment, it would not follow in a case of this kind that the court was without jurisdiction to entertain the later proceedings. ‘By virtue of its inherent power to control the conduct of its affairs, to maintain its dignity and to enable itself to do justice the court has a summary jurisdiction to inquire into conduct of its officers and to deal with an attorney found to have committed any evil practice contrary to justice and honesty.’ In re Keenan, 287 Mass. 577, 582, 192 N.E. 65, 68, 96 A.L.R. 679, and cases cited. The court may exercise this jurisdiction without compliance with the requirements of formal procedure which must be observed in ordinary litigation. No complaint, indictment or information and no service of process are necessary. In re Randall, Petitioner, 11 Allen, 473. ‘It is enough if in some proper way the attorney is reasonably and definitely informed of the matters alleged against him, and given an opportunity of being heard in answer of them.’ Bar Association of Boston v. Greenhood, 168 Mass. 169, 184, 46 N.E. 568, 575;Boston Bar Association v. Scott, 209 Mass. 200, 203, 95 N.E. 402;In re Allin, 224 Mass. 9, 11, 112 N.E. 494;In re Sleeper, 251 Mass. 6, 21, 146 N.E. 269;In re Ulmer, 268 Mass. 373, 391, 167 N.E. 749. If, as the respondent contends, the order of October 5 was a final judgment in his favor ending the original proceeding against him, then the order of December 13 purporting to vacate the order of October 5 and assigning the fourteenth report and the three supplementary reports for hearing de novo was the commencement of a new proceeding against the respondent. That proceeding was within the general jurisdiction of the court. It complied with all the requirements of law applicable to such proceedings in that the respondent had ample notice, knew what the charges were, had a full and complete opportunity to defend himself and in fact did defend himself throughout a long trial without, so far as appears, making any objection to the jurisdiction and without any reference to any judgment in the original proceeding as a defence. The existence of a former judgment in favor of the respondent could not affect the jurisdiction of the court to hear the second proceeding. At most it could be no more than an affirmative defence in the nature of res judicata to be seasonably set up and proved by the respondent. It is too late now to assert that defence for the first time. See In re Randall, Petitioner, 11 Allen, 473, 481;Maker v. Bouthier, 242 Mass. 20, 136 N.E. 255;Moll v. Wakefield, 274 Mass. 505, 175 N.E. 81.

2. Apparently the respondent asks us to hold that the proceedings against him have been so conducted that he has been deprived of due process of law. This contentionis based upon the manner in which the preliminary investigation and the proceedings before the commissioner were conducted and upon the fact that the commissioner in certain of his reports made findings of fact against the respondent without, it is said, an adequate opportunity for the respondent to be heard. But the proceeding against this respondent did not begin with the filing of the petition of the committee of citizens or with the appointment of the commissioner or with the commissioner's investigation of the respondent. It began with the filing of the commissioner's reports against the respondent and action by the court thereon. This was decided in Re Keenan, 287 Mass. 577, 586, 192 N.E. 65, 96 A.L.R. 679. What had gone before was no part whatever of the proceeding against the respondent. No exception appears to have been directed specifically to the present contention. It is evident from and record that the respondent was fully and fairly tried upon issues of which he was well informed and with full opportunity to present his defence. All that was said of this same contention in Re Keenan, 287 Mass. 577, 587, 192 N.E. 65, 96 A.L.R. 679, is equally applicable here.

3. The respondent excepts to the refusal of the single justice to rule as to each of the seven cases in connection with which he was...