In the Matter of Proceedings against Elam
| Decision Date | 12 April 1948 |
| Docket Number | No. 40164.,40164. |
| Citation | 211 S.W.2d 710 |
| Parties | In the Matter of the Proceedings Against OSCAR B. ELAM. |
| Court | Missouri Supreme Court |
(1) A court will not permit its process to be trifled with and its intelligence affronted by the offer of pleadings which any reasoning person knows cannot possibly be true. Nieman v. Long, 31 F. Supp. 30; Jaeger v. Naef, 171 Atl. 166. (2) Power to strike out sham pleadings is inherent in court, and statutes relating to sham pleadings merely confers power that was exercised at common law. A "sham plea" is one good on its face but false in fact. In re Beam, 117 Atl. 613, 93 N.J. Eq. 593. (3) Plea is considered "sham" when it is palpably or inherently false, and from plain or conceded facts in case must have been known to party interposing it to be untrue. Rea v. Hackney, 157 So. 190, 117 Fla. 62. (4) At common law, a plea was considered "sham" when it was palpably or inherently false, and from the plain or conceded facts in the case must have been known to party interposing it to be false. Jaeger v. Naef, 171 Atl. 166, 112 N.J.L. 417; Fidelity Mut. Life Ins. Co. v. Wilkes Barre & H.R. Co., 120 Atl. 734, 98 N.J.L. 507; Black's Law Dictionary, "Sham — False: Said of Pleading." Germofort Mfg. Co. v. Castles, 97 S.C. 381, 81 S.E. 665; Segerstrom v. Holland Piano Mfg. Co., 160 Minn. 95, 199 N.W. 897. (5) A sham pleading is therefore one good in form, but false in fact. Bollen v. Woodhaus, 68 Colo. 322, 190 Pac. 427. (6) Where defendants had been found guilty in criminal presentation under the Sherman Act, their answer in government's equity suit denying participation in alleged conspiracy held properly stricken out as sham. Sherman Anti-Trust Act., Secs. 1, 2, 15 U.S.C.A., Secs. 1, 2; Local 167 of International Brotherhood of Teamsters, etc., v. United States, 54 S. Ct. 396, 291 U.S. 293, 78 L. Ed. 804. (7) It is not upon the evidence alone, but upon the pleadings and the evidence applicable to the pleadings that a plaintiff can recover and it is necessary in order to give the judgment merit to finality of adjudication between the parties. State ex rel. McManus v. Muench, 217 Mo. 124, 117 S.W. 25; Charles v. White, 214 Mo. 187, 112 S.W. 545; United States v. Seminole Nation, 299 U.S. 417, 18 L. Ed. 316, 57 S. Ct. 283; United States v. Northern R. Co., 177 U.S. 435, 44 L. Ed. 836, 20 S. Ct. 706; Reynolds v. Stockton, 140 U.S. 254, 35 L. Ed. 464, 11 S. Ct. 773; Crocket v. Lee, 7 Wheat. (U.S.) 522, 5 L. Ed. 513; Johnson v. Cadillac Motor Car Co., 261 Fed. 878; Hoppet v. United States, 7 Cranch. (U.S.) 289, 3 L. Ed. 380; Hetzel v. Baltimore & O.R. Co., 169 U.S. 26, 42 L. Ed. 648, 18 S. Ct. 255. (8) The judgment or decree must be within the issues. Missouri Code Pleading, Second Edition, sec. 125. (9) A judgment rendered without some pleading filed in the cause upon which it can be based is void. Armstrong v. Crooks, 83 Mo. App. 141. (10) The finding of the court should not be made on matter not embraced in the pleadings. Propes v. Propes, 171 Mo. 407, 71 S.W. 685. (11) An agreed statement of facts will not authorize a judgment outside of the pleadings in the case. Rutter v. Carothers, 223 Mo. 631, 122 S.W. 1056. (12) The decree must be limited to the pleadings and nothing can be embraced therein which is not covered by the pleadings. The rule that under a general prayer for relief a party may have any relief which he shows himself entitled to, is limited to relief founded on and consistent with the scope of the pleadings. Needles v. Ford, 167 Mo. 495, 67 S.W. 240; Schneider v. Patton, 175 Mo. 634, 75 S.W. 155. (13) The petition is as much a part of the record as the judgment; and if the judgment rendered is not authorized by the allegations in the petition it is erroneous. St. Louis v. Wright Contracting Co., 210 Mo. 491, 109 S.W. 6. (14) Parties are bound by their pleadings and courts cannot give relief inconsistent with the allegations and admissions contained therein. Paul v. Minneapolis T.M. Co., 87 Mo. App. 647; Mo. Dig., Judgment, sec. 248 Supplement. (15) Court cannot go outside evidence and pleadings and grant relief not responsive to issues. Raines v. Moulder, 90 S.W. (2d) 81, 338 Mo. 275. (16) Proof without pleading cannot support judgment. Massey-Harris Harvester Co. v. Federal Reserve Bank of Kansas City, 48 S.W. (2d) 158, 226 Mo. App. 916; State ex rel. McManus v. Muench, 217 Mo. 124, 117 S.W. 25.
John B. Pew and Irvin Fane for Circuit Bar Committee for The Sixteenth Judicial Circuit of Missouri.
(1) A lawyer may not lawfully represent interests which are conflicting in the sense that it would be his duty, on behalf of one client, to contend for that which his duty to another client would require him to oppose. Rule 4.06, Supreme Court of Missouri; Barrett v. Bell, 101 Mo. App. 288, 73 S.W. 865; Moffett Bros. Partnership Estate v. Moffett, 345 Mo. 741, 137 S.W. (2d) 507; National Hollow Brake Beam Co. v. Bakewell, 224 Mo. 203, 123 S.W. 561; Pfiffners Guardianship, 194 S.W. (2d) 233; In re Williams, 128 S.W. (2d) 1098. (2) A lawyer who fails scrupulously to avoid personalities between counsel and conducts a personal attack upon his adversary in the proceedings is guilty of unprofessional conduct. Rule 4.17, Supreme Court of Missouri. (3) An attorney who, to accomplish his own purpose or that of his client, knowingly files a pleading falsely charging another attorney who is a party to the action with misconduct which, if true, would subject the latter to criminal prosecution, is guilty of such misconduct as shows him to be unfit to practice law. Rule 4.17, Supreme Court of Missouri; Leimer v. Hulse, 352 Mo. 451, 178 S.W. (2d) 335, certiorari denied 65 S. Ct. 60, 323 U.S. 744, rehearing denied 65 S. Ct. 113, 323 U.S. 744. (4) A lawyer who maliciously charges in open court that the trial judge caused a "fraudulent" and "phony" decree to be entered is guilty of unprofessional conduct. Rule 4.01, Supreme Court of Missouri. (5) A lawyer who maliciously alleges in a motion filed in the circuit court that a decree prepared and filed by the trial court was "conceived in fraud and brought forth in iniquity" is guilty of unprofessional conduct. Rule 4.01, Supreme Court of Missouri. (6) A lawyer who, without probable cause, files a suit in the circuit court charging a circuit judge with robbery, extortion, blackmail, fraud, fraudulent spoliation of the records of the circuit court, and other acts of judicial misconduct, is guilty of unprofessional conduct. Rule 4.01, Supreme Court of Missouri; State v. Mullins, 129 Mo. 231, 31 S.W. 744; State v. Harber, 129 Mo. 271, 31 S.W. 889; Leimer v. Hulse, 352 Mo. 451, 178 S.W. (2d) 335, certiorari denied 65 S. Ct. 60, 323 U.S. 744, rehearing denied 65 S. Ct. 113. 323 U.S. 744.
This proceeding was instituted directly in this court by leave, under Rule 5.03, on an information filed by the members of the Circuit Bar Committee of the Sixteenth Judicial Circuit (Jackson County) charging the respondent Oscar B. Elam, a lawyer who resides and offices in that circuit, with professional misconduct in violation of Rules 4.01, 4.06 and 4.17 of the Canons of Ethics adopted by this court The information prays that if upon a hearing the respondent be found guilty, a judgment be rendered assessing such penalty or punishment under Rule 5.10 as shall seem proper. Under that rule the disciplinary action may be either a reprimand, suspension from the practice for a designated time, or permanent disbarment. This court appointed Hon. Frank Hollingsworth, Judge of the Eleventh Judicial Circuit, as Special Commissioner to take the evidence and make report to this court of his findings of fact and conclusions of law. His report has been of great assistance in elucidating a long and involved record.
The charges against Mr. Elam grow out of a suit he brought in the circuit court of Platte County in 1944 for Mrs. Stacy Henderson and her sister Mrs. Minerva Crilly, as plaintiffs, against their insane brother Beauregard Brown, to partition a residence property in Weston, Platte County, owned by those three parties as tenants in common. A dispute arose between some of the parties and respondent Elam on the charge that he was attempting by contract to effect a partition sale of the property to James E. Bovard, who officed with him, at a price less than it was worth. At the sale Bovard was forced by competitive bidding to pay more than respondent's contemplated sale price.
Thereafter respondent Elam, claiming to represent both the two plaintiffs and Bovard, endeavored to have the latter substituted as plaintiff for the former in the partition suit, and Bovard's bid price rebated to the contemplated contract sale price. Motions of a similar nature followed. At hearings in May and August, 1945, the trial judge intervened and enforced the bid price and wrote the final decree. At those hearings respondent Elam used intemperate language referring to opposing counsel and addressed to the court. The same was true of certain motions or pleadings filed by him. He further brought a $60,000 libel suit against the trial judge, as hereafter explained. The charges against him are that: (1) his attitude and conduct toward the trial court were disrespectful, in violation of Canon 4.01; that he represented conflicting interests and deserted his original clients, the two plaintiffs, in violation of Canon 4.06; that he engaged in personalities and made false charges, in the nature of personal attacks on opposing counsel, both orally and in pleadings, in violation of Canon 4.17. All these were sustained by the Special Commissioner's report, in whole or in part.
Respondent Elam is now 78 years old. He has briefed the case and argued it here. He has furthermore filed a motion to strike 18 exhibits from the transcript on the grounds that they were irrelevant or not presented...
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