In re Nunez

• Decision Date: 21 June 1943
• Docket Number: 37065.
• Court: Louisiana Supreme Court
• Parties: In re NUNEZ.

14 So.2d 680

203 La. 847

In re NUNEZ.

No. 37065.

Supreme Court of Louisiana

June 21, 1943

Charles A. McCoy, of Lake Charles, Hollingsworth B Barret, of Shreveport, Frank Wm. Hart, of New Orleans, Guy V Rich, of Bogalusa, and Benjamin Y. Wolf, of New Orleans Chairman, Supreme Court Committee on Professional Ethics and Grievances.

L H. Perez, of New Orleans, for defendant.

HIGGINS Justice.

The Louisiana State Bar Association, through the Committee on Professional Ethics and Grievances, appointed by this Court under Article 13 of the Articles of Incorporation of the Association, instituted disbarment proceedings against the defendant, alleging that he had demeaned himself in an unethical and unlawful way in thirteen annulment and divorce proceedings by colluding with the principals, the curator ad hoc, and the trial judge, and in deceiving the judge and attempting to confer jurisdiction upon the 25th Judicial District Court, Parish of St. Bernard, in cases where the matrimonial domiciles and the places of abandonment were outside of the territorial limits of the court's jurisdiction, all as will more fully appear from the records annexed to and made a part of the petition.

The defendant filed exceptions of no right and no cause of action and also asked for a subpoena duces tecum to have the Committee produce the record of its investigation of the defendant's conduct, in order that this record could be considered in connection with the petition and annexed documents in determining whether or not the Committee had alleged a right or a cause of action against him. The Committee had previously furnished the defendant's attorney with a copy of this record and readily consented that it be used by the court in deciding the issue presented.

Section 2 and 4 of Article 13 of the Association's Articles of Incorporation read as follows:

'Section 2. Investigation of Complaints. All complaints looking to the suspension or disbarment of any member of the Bar of Louisiana shall be investigated by the Committee on Professional Ethics and Grievances.'

'Section 4. Disbarment and Suspension. If, after investigation, a majority of the Committee shall be of the opinion that the member against whom the complaint has been made has probably been guilty of a violation of the laws of the State of Louisiana relating to the professional conduct of lawyers and to the practice of law, or of a willful violation of any rule of professional ethics of sufficient gravity as to evidence a lack of moral fitness for the practice of law, it shall be the duty of the Committee to institute in the Supreme Court a suit for the disbarment or suspension of the accused member of the bar, and to designate one or more of their number to prosecute the same.' (Italics ours.)

It is well-settled that allegations of fact set forth in a petition and not mere conclusions of the pleader are to be accepted as true for the purpose of determining whether an exception of no right of action is well-founded. Federal Land Bank of New Orleans v. Mulhern, 180 La. 627, 157 So. 370, 95 A.L.R. 948; Woolie v. Carson, etc., 177 La. 990, 149 So. 551; and Trumbaturi v. Katz & Besthoff, 180 La. 915, 158 So. 16.

The jurisprudence is clear that documents, records and exhibits annexed to and made a part of a petition control the allegations of the petition founded thereon. Alliance Trust Co. v. Paggi-Streater Co., 173 La. 356, 137 So. 60, and Claiborne v. Lezina, 175 La. 635, 144 So. 131.

There are ten divorce proceedings, which were filed by the defendant as the attorney for the various plaintiffs on the grounds of two and four years' continuous separation of the spouses. The first statute on this subject is Act 269 of 1916, which was amended by Act 31 of 1932 and Act 430 of 1938. In all three statutes either married party is granted the right to sue in the courts of this State at his or her residence, provided the period of residence is continuous for the same length of time of continuous separation necessary to grant a divorce. The first statute provided a period of seven years' continuous separation, the second, four years', and the third, two years'. In all other respects, they are alike. In the ten cases in question, it appears that either the plaintiff or the defendant, or both, were residents of the Parish of St. Bernard and, consequently, the court had jurisdiction of them. In some of these divorce proceedings, the judgments were entered by default and, in others, they were granted contradictorily, the curator ad hoc representing the absentee. In each default case, service of the citation and the petition was legally made and the law's delays observed before entering the preliminary default and later having it confirmed. In the proceedings where a curator was appointed, the cases were set for trial and were contested by him. Notes of evidence were made and signed by the witnesses, who testified in the respective cases. There is nothing contained in these records which would indicate that there was collusion between the defendant as attorney for the plaintiffs and the principals therein, the curator, and the trial judge, nor is there anything to show that the trial judge was deceived by the defendant herein. Mention was made of the fact that the curator appointed by the court accepted service of the petition and waived citation on the same date he was appointed, with a view of showing it might have been a consent proceeding.

Article 116 of the Code of Practice, as amended by Act 167 of 1924, provides that '* * * the attorney at law so appointed may waive service and citation of the petition, but shall not waive time or any legal defense.' Furthermore, it appears from the record in the removal suit of Perez, Dist. Atty. v. Meraux, Judge, 201 La. 498, 9 So.2d 662, that the defendant herein, as Assistant District Attorney, assisted the District Attorney in prosecuting the removal suit against the judge.

The thirteen records annexed to the petition in the instant case were not introduced by the district attorney in the removal suit against the judge but were filed in evidence by the attorney representing the judge for the purpose of showing that he was not guilty of operating a 'divorce mill' in his court and that...