In Re Parker.

• Decision Date: 18 March 1936
• Docket Number: No. 233.,233.
• Citation: 209 N.C. 693,184 S.E. 532
• Court: North Carolina Supreme Court
• Parties: In re PARKER.

184 S.E. 532

209 N.C. 693

In re PARKER.

No. 233.

Supreme Court of North Carolina.

March 18, 1936.

Appeal from Superior Court, Johnston County; Small, Judge.

Disbarment proceeding by the North Carolina State Bar against James D. Parker. From judgment of disbarment by the Superior Court entered upon findings and conclusions of the Council of The North Carolina State Bar, the respondent appeals.

Reversed.

Disbarment proceeding instituted July 2, 1934, by the North Carolina State Bar, under authority of chapter 210, Public Laws 1933, on allegations substantially as follows:

1. That complaint against respondent has been filed with the Grievance Committee of the state bar, and report thereon recommending investigation and hearing.

2. That the charges are based upon the case of "State ex rel. W. Lester Lang-don, Administrator c. t. a. v. James D. Parker and Ezra Parker, Executors and Trustees under the will of Willis Calvin Lassiter, " which action was tried at the March term, 1933, Johnston superior court, resulting in verdict "that the respondent, while acting as executor, did fail to faithfully execute the trust reposed in him as executor, " etc., to the damage of said estate in the sum of $10,633.52. Judgment was thereupon entered against the defendants and their surety, Massachusetts Bonding & Insurance Company, for said amount and costs.

3. That upon said information and belief, it is averred, respondent, while acting as one of the executors and trustees of said estate, wrongfully converted said sum to his own use and benefit and has failed properly to account therefor.

4. That it is further alleged, upon such information and belief, respondent not only acted as one of the executors and trustees of said estate, but also represented said estate in the capacity of attorney, and has been guilty of unprofessional conduct in connection therewith.

Whereupon, a trial committee was appointed to hear the evidence, find the facts, and report its conclusions thereon.

At the opening of the hearing before the trial committee, the respondent demurred (1) to the jurisdiction of the committee, and (2) to the applicability of chapter 210, Public Laws 1933, to acts committed prior to July 1, 1933, its effective date. Demurrer overruled; exception.

The trial committee found (one member dissenting) that the misconduct of the respondent was that of an executor, and not as attorney for the estate, and recommended the proceeding be dismissed.

On appeal to the council of the North Carolina State Bar, the findings and conclusions of the trial committee were reversed, contrary findings made, and disbarment ordered.

Respondent filed exceptions to said findings and judgment and gave notice of appeal to the superior court of Johnston county.

The complainant then amended its complaint and charged the respondent with the wrongful conversion of funds, in the amount above mentioned, belonging to the estate of W. C. Lassiter, deceased.

Before the judge of the superior court, the respondent demanded a jury trial, which was denied as a matter of right, but allowed as a matter of grace.

The jury returned the following directed verdict:

"Did the respondent collect as an attorney moneys of the estate of W. C. Lassiter and retain the same without bona fide claim thereto as alleged in the rule to show cause? A. Yes."

Respondent challenged the sufficiency of the evidence by motion for directed verdict in his favor. Overruled; exception.

The respondent renewed his demurrer before the judge of the superior court which was overruled; his exceptions were likewise overruled; the findings and conclusions of the council adopted and approved, and the motion to disbar by virtue of the court's inherent power was continued without prejudice.

From the judgment of disbarment entered upon the findings and conclusions of the council, adopted and approved by the judge of the superior court, and the jury's verdict, the respondent appeals, assigning errors.

G. A. Martin, James A. Wellons, and J. Ira Lee, all of Smithfield, for appellant.

F. Ertel Carlyle and Varser, McIntyre & Henry, all of Lumberton, for North Carolina State Bar.

STACY, Chief Justice.

The plea to the jurisdiction brings in question the power and authority of the council of the North Carolina State Bar to disbar the respondent, and to take from him his license and right to practice law in this state.

The basis of respondent's challenge is fourfold:

1. It is pointed out that by the express terms of the statute, chapter 210, Public Laws 1933, the North Carolina State Bar is created "an agency of the State of North Carolina" (section 1), with its government vested in a "Council" of 20 members, one from each judicial district, yet "neither a Councillor nor any officer of the Council or of The North Carolina State Bar shall be deemed as such to be a public officer as that phrase is used in the Constitution and laws of the State of North Carolina." Section 3. This last limitation, it is contended, deprives the "Council" of any judicial or quasi judicial powers. Ex parte Schenck, 65 N.C. 353; State v. Johnson, 171 N.C. 799, 88 S.E. 437; State v. Kiker, 33 N.M. 6, 261 P. 816.

2. It is also advanced by the respondent that the act contains an unwarranted delegation of legislative powers over the subject of discipline, disbarment, and restoration of attorneys practicing law in the state. Durham Provision Co. v. Daves, 190 N.C. 7, 128 S.E. 593.

3. It is next suggested that the right of trial by jury, vouchsafed in the Declaration of Rights, § 19, is denied in disbarment proceedings. Ex parte Thompson, 228 Ala. 113, 152 So. 229. True, an appeal may be taken from any judgment of sus-pension or disbarment "to the Superior Court Judge regularly holding the courts of the county * * * on the record made before the Council" and "upon appeal to the Judge of the Superior Court, the accused shall have the right to have his cause heard by a jury, " but it is further provided that in hearings before the council (or committee) "and in all appeals the procedure shall conform as near as may be to the procedure now provided by law for hearings upon the report of referees in references by consent." Section 11.

It is well settled that, in consent references, the parties waive the right to have any of the issues of fact passed upon by ajury. C.S. § 572; Carr v. Askew, 94 N.C. 194; Green v. Castlebury, 70 N.C. 20. Compare 3 C.S.Supp. 1924, § 6618, as amended by Pub. Laws 1933, c. 32; Board of Medical Examiners v. Gardner, 201 N. C. 123, 159 S.E. 8; Board Of Medical Examiners v. Carroll, 194 N.C. 37, 138 S.E. 339.

4. Finally, the respondent says his right of appeal to the Supreme Court is left in doubt by the statute: "From the decision of the Superior Court judge hearing the appeal or the jury, the Council (or...