In re Noell, 407.
| Decision Date | 21 November 1937 |
| Docket Number | No. 407.,407. |
| Parties | In re NOELL. |
| Court | U.S. Court of Appeals — Eighth Circuit |
P. H. Cullen, Clem F. Storckman, and Cullen Coil, all of St. Louis, Mo., for Charles P. Noell.
Leland Hazard and H. G. Leedy, both of Kansas City, Mo., for Bar Committees of Missouri.
Before STONE, GARDNER, SANBORN, WOODROUGH, and THOMAS, Circuit Judges.
Charles P. Noell, an attorney admitted to practice in this court, has filed a response to an order of this court entered April 10, 1937, which order, after reciting that a copy of an order made by the St. Louis Court of Appeals, suspending his license to practice law in the state courts of Missouri for a period of two years, was filed with the clerk of this court, provides that, unless, within forty days from April 10, 1937, he shall show that such suspension is no longer in effect, he will, by virtue of paragraph 4 of rule 7 of the rules of this court, be suspended from practice in this court until the period of suspension under the order of the St. Louis Court of Appeals shall have expired, or until the further order of this court.
The respondent, Noell, asserts that the order of the St. Louis Court of Appeals (96 S.W.2d 213), which it is sought to make the basis of his suspension to practice in this court, was made and entered without a hearing and without giving to him an opportunity to be heard, and was therefore not such an order as this court may recognize as a valid order of suspension or as the basis for striking his name from the roll of counsel of this court.
Paragraph 4 of rule 7 of the rules of this court provides: "Any member of the bar of this court who is disbarred or suspended in any court of record shall, because thereof, be stricken from the roll of counsel, unless within a time to be fixed by this court, and after notice mailed by the clerk to the address on the roll, he shall show that such disbarment or suspension is no longer in effect."
It is suggested that, since the St. Louis Court of Appeals is a court of record and since the respondent has failed to show that he is no longer suspended from the practice of law in the state courts of Missouri, an order striking his name from the roll of counsel of this court must follow. This suggestion, we think, overlooks the rule that this court may not recognize as valid an order of suspension or disbarment where the procedure in the state court, from want of notice or opportunity to be heard, was wanting in due process. Selling v. Radford, 243 U.S. 46, 51, 37 S. Ct. 377, 61 L.Ed. 585, Ann.Cas.1917D, 569. "A sentence of a court pronounced against a party without hearing him, or giving him an opportunity to be heard, is not a judicial determination of his rights, and is not entitled to respect in any other tribunal." Windsor v. McVeigh, 93 U.S. 274, 277, 278, 23 L.Ed. 914; Hovey v. Elliott, 167 U.S. 409, 414, 17 S.Ct. 841, 42 L.Ed. 215.
The procedure which was followed in the state court was, in substance, this: Charges were there filed against the respondent, to which he made answer. That court appointed a commissioner to hear the cause and to report his findings of fact and recommendations thereon. The commissioner heard the cause and reported to and filed with the state court his findings of fact and his recommendation that the respondent be suspended from the practice of law for a period of two years. The commissioner transmitted to that court the testimony taken before him and the briefs which had been filed with him. Those who had filed the charges against the respondent took exception to the recommendation of the commissioner; it being their contention that the respondent should be disbarred instead of suspended. The respondent filed exceptions to the findings and recommendation of the commissioner, challenging their correctness and the sufficiency of the evidence to sustain them. The state court fixed no time for hearing the parties upon their exceptions, and no order was made with respect to either oral or written...
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