In the Matter of H____ S____
| Decision Date | 04 November 1942 |
| Docket Number | No. 22893.,22893. |
| Citation | 165 S.W.2d 300 |
| Parties | IN THE MATTER OF H____ S____. |
| Court | Missouri Court of Appeals |
Robert Kratky for petitioner.
By the terms of Section 13336, R.S. Mo. 1939, providing that any attorney removed from practice or suspended for a longer term than one year, on application to the Supreme Court or to the court in which the judgment of removal or suspension was first rendered, may be reinstated in the discretion of the court at any time after one year from the date of such judgment of removal or suspension, the St. Louis Court of Appeals has jurisdiction to reinstate an attorney who has been removed from practice by a judgment of said court. Even in the absence of statute, a court which renders a judgment of disbarment has jurisdiction thereafter, upon a proper showing, to reinstate the attorney. This is usually based on the continuing jurisdiction of the court over the person and the subject-matter; many cases holding that such court has exclusive jurisdiction over a petition for reinstatement. 2 Thornton on Attorneys, sec. 902, p. 1332; 5 American Jurisprudence, Attorney at Law, sec. 301, p. 443; 2 R.C.L., pp. 1113, 1114. There is a conflict of authority as to the jurisdiction of the courts on application for reinstatement. 7 C.J. Sec., Attorney and Client, sec. 41, p. 817. Among the cases holding that the court which has disbarred an attorney is the proper court to reinstate said attorney are: Ex Parte Peters, 195 Ala. 67, 70 So. 648; In re King, 54 Ohio St. 514, 43 N.E. 686; In re Salsbury, 217 Mich. 260, 186 S.W. 404; In re Simpson, 11 N.D. 526, 93 N.W. 918; In re Margolis, 280 Pa. 296, 124 Atl. 439; Burns v. State, 129 Tex. 303, 103 S.W. (2d) 960; Ex Parte Redmond, 120 Miss. 536, 82 So. 513. Decisions to the contrary are based upon the theory that a petition for readmission is a new proceeding rather than a continuation of the old, and that the court which rendered the judgment of disbarment loses jurisdiction to reinstate upon the judgment of disbarment becoming final. The minority rule holds that, because of such theory, only a court having jurisdiction to admit an attorney to practice has the power to pass upon an application for reinstatement. No reported case in Missouri passes upon the question, but in view of the statute, supra, as well as the decisions of this State which discuss the theory of disbarment and the powers of the courts with respect thereto, it is submitted that in Missouri a court which renders a judgment of disbarment has the power to reinstate the attorney upon a proper showing. In Missouri, the power to disbar is not derived from the power to admit to practice. The Supreme Court has held that a Court of Appeals possesses inherent power to disbar attorneys, in the face of the objection that there was not such inherent power because the Supreme Court was the only court having power to license attorneys to practice in this State. In re Richards, 333 Mo. 907, 63 S.W. (2d) 672; State ex rel. Selleck v. Reynolds, 252 Mo. 369, 158 S.W. 671. In the case of In re Sparrow, 338 Mo. 203, 205, 90 S.W. (2d) 401, 402, the court specifically held that the Court of Appeals has such inherent jurisdiction within its territorial jurisdiction. There is nothing in the rules promulgated by the Supreme Court, Rules 35, 36, 37 and 38, which in any way affects or attempts to affect the jurisdiction of the Court of Appeals (or any other court) to reinstate an attorney who has been removed from practice by the judgment of such court. It follows that the Court of Appeals has jurisdiction to reinstate an attorney disbarred by it, not only by virtue of its inherent powers, but by express grant of the statute. The Legislature has the power to enact such a statute in aid of the inherent jurisdiction of the court. In re Richards, 333 Mo. 907, 63 S.W. (2d) 672; State ex rel. Clark v. Shain, 343 Mo. 542, 122 S.W. (2d) 882.
George L. Stemmler, John S. Marsalek, Amandus Brackman, Ronald J. Foulis and R. Walston Chubb, Chairman, Bar Committee for the Eighth Judicial Circuit of Missouri.
Clifford Greve, of counsel.
If the petition, praying for reinstatement after final disbarment (as distinguished from suspension), is to be regarded as an application for readmission to the Bar, or the equivalent thereof, then there is a serious question whether this court has jurisdiction, because, under the rules of the Supreme Court and the statutes of this State, the Supreme Court has exclusive jurisdiction of admission of lawyers to the Bar. Section 13316, R.S. Mo. 1939, provides that the power to admit and license persons to practice as attorneys in this State is vested exclusively in the Supreme Court. The subject of admission to the Bar is governed by Rule 38 of the Supreme Court. If this court regards the present application as the equivalent of an application for readmission to the Bar, the Supreme Court has exclusive jurisdiction regardless of the provisions of the statutes. Section 13336, Revised Statutes 1939, purporting to vest alternative jurisdiction, in reinstatement proceedings, in the Supreme Court or in the court which entered the original decree, would be unconstitutional as an invasion of the judicial function if it frustrates or conflicts with the exclusive jurisdiction of the Supreme Court in respect to the admission of attorneys. The California courts hold that an application for reinstatement is, in effect, an application for readmission. Danford v. Superior Court, 49 Cal. App. 303, 193 Pac. 272, l.c. 274; In re Mash, 39 Cal. App. 548, 179 Pac. 897, l.c. 898; In re Cate, 270 Pac. 968, l.c. 970; In re Cate, 271 Pac. 356, 94 Cal. App. 370. South Dakota apparently holds to the same effect. In re Egan, 52 S. Dak. 394, 218 N.W. 1. The case of In re Keenan (Supreme Judicial Court, Mass. 1941), 37 N.E. (2d) 516, 137 A.L.R. 766, is authority for the same proposition, and for the further proposition that where, by a statute (not inconsistent with the rules of court), an inferior court has jurisdiction to admit to the Bar, it has like jurisdiction to examine for readmission. The doctrine of the above cases, that an application for readmission to the Bar is equivalent to an original application for license to practice law, appears to be sound, and if so it follows that the only court of this State which can properly entertain such an application is the Supreme Court. Section 13316, R.S. Mo. 1939, provides that the power to admit and license persons to practice as attorneys in the courts of record of this State is vested exclusively in the Supreme Court. Section 13336, R.S. Mo. 1939, on reinstatement, makes no reference to disbarment, and fails to take into account the practical question of the issuance of a new license to an attorney who has been disbarred and who is therefore without any license to practice in this State. There seems to be little doubt that in Missouri the Supreme Court, as a constitutional court, has paramount jurisdiction over disciplinary proceedings and admission of attorneys to practice law in this State. In re Richards, 333 Mo. 907, 63 S.W. (2d) 672. Missouri may be regarded as having taken the position that in this field the rules of the Supreme Court are "super-statutory," taking precedence over legislative enactments in conflict therewith or calculated to frustrate or defeat the purposes of the court rules. Professor Tyrrell Williams: "The Source of Authority for Rules of Court Affecting Procedure," XXII Washington University Law Quarterly, page 459 The California courts have taken the same view. In re Cate, 273 Pac. 617, l.c. 619; In re Phillips, 109 Pac. (2d) 344, 17 Cal. (2d) 55. So have the Pennsylvania courts. Hoopes v. Bradshaw, 231 Pa. 485, 80 Atl. 1098, l.c. 1099; In re Olmstead, 292 Pa. 96. Oklahoma is apparently in accord with the same doctrine. In re Fleming, 167 Okla. 335. The modern trend of decision appears to be toward the supremacy of the judicial department. Annotations in 66 A.L.R. 512 and 81 A.L.R. 1064. It appears that petitioner does not have the necessary qualifications as to residence to entitle him to be admitted under Rule 38 of the Supreme Court. The petition shows that he is not a resident of this State but resides at Taylorville, Illinois. While residence in an adjoining county of an adjacent State is apparently sufficient, we assume that the court will take judicial notice that Taylorville, Illinois, is not in an adjoining county of an adjacent State. A disbarred attorney who no longer has the necessary qualifications of residence cannot be reinstated. In re Fleming, 36 N. Mex. 94, 8 Pac. (2d) 1063; In re Salsbury, 217 Mich. 260, 186 N.W. 404.
Application for reinstatement as a member of the Bar of this State. On March 16, 1934, this court entered its judgment and decree as follows:
"The judgment of the Court is that respondent be removed from the practice of the law in the courts of this State, and that his license to engage in the practice of the law in this State be revoked."
This judgment and decree was entered after a hearing was duly held upon a complaint charging the respondent with malpractice and misdemeanor in his professional capacity, in attempting to induce a police officer to violate his official duty. The case is reported in 69 S.W. (2d) 325.
Among other things the application for reinstatement says that subsequent to the decree of disbarment the applicant returned to the home city of his parents, to-wit, Taylorsville, Illinois, and has since that time been engaged in the retail shoe business in association with his father; that he has engaged in civic and communal affairs of Taylorsville, Illinois, and that his conduct has been exemplary and and above reproach.
At the outset we are confronted with the question of whether or not ...
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