Johnson v. Purcell

• Decision Date: 13 December 1938
• Docket Number: 44360.
• Parties: JOHNSON v. PURCELL, Distrlct Judge.
• Court: Iowa Supreme Court

282 N.W. 741

225 Iowa 1265

JOHNSON v. PURCELL, Distrlct Judge.

No. 44360.

Supreme Court of Iowa.

December 13, 1938

Appeal from District Court, Jackson County; John E. Purcell, Judge.

After an adverse ruling on a motion to dismiss a petition in equity for injunctive relief and after pleading over, by way of answer, defendant, in said equity cause, presented his petition to one of the judges of this court for writ of certiorari and obtained said writ and a stay of proceedings in the court below.

Writ annulled.

Trewin, Simmons & Trewin, of Cedar Rapids, for petitioner.

E. C Halbach, of Clinton, for respondent.

HAMILTON, Justice.

The original action was a suit in equity brought by members of the bar of Jackson County, Iowa, for themselves and all other attorneys and counsellors similarly situated and for the protection of the public asking for an injunction restraining petitioner, Frank T. Johnson, a layman, from holding himself out as an attorney and from engaging in the practice of law. To the petition said Frank T. Johnson, defendant in the original equity case, filed a motion to dismiss the petition wherein it was alleged, among other grounds, that the District Court of Jackson County, Iowa, had no power or jurisdiction to entertain said action or to grant the relief prayed for or any relief, and that the plaintiffs, both individually and collectively, were without power, right, or authority to maintain such action either on their own behalf or on behalf of other attorneys or counsellors similarly situated or for the protection of the public. The trial court, on December 28, 1937, overruled the motion and gave the defendant twenty days to plead. On January 15, 1938 defendant filed his answer in which he admitted that he was not then and never had been admitted to practice in the courts of this state. The answer pleaded as defense the jurisdictional matters set forth in the motion to dismiss. After answering as aforesaid, the defendant in the original equity case and petitioner herein, on January 17, 1938, presented to one of the judges of the Supreme Court of Iowa his petition for writ of certiorari wherein he again challenges the jurisdiction of the trial court to entertain said cause of action and the capacity of the plaintiffs to bring said suit. There was also prayer for stay of proceedings in the court below. The writ was issued and the proceedings stayed accordingly and the matter is here on the record presented by printed abstract and briefs for our consideration and determination.

It is the rule in this state that error in overruling a demurrer (in the instant case, a motion to dismiss) is waived by answering to the merits. Iowa-Minnesota Land Co. v. Conner, 136 Iowa 674, 112 N.W. 820; Wagner v. Glick, 177 Iowa 623, 159 N.W. 233, and Winnebago State Bank v. Hustel, 119 Iowa 115, 93 N.W. 70. However, where the question is want of jurisdiction, the matter may be raised at any stage of the proceedings. Orcutt v. Hanson, 71 Iowa 514, 32 N.W. 482. In the cited case, we said [page 484]:

" The executrix attempted to raise the question of jurisdiction * * * by demurrer to the petition, which was overruled. She afterwards answered. An objection based upon the want of jurisdiction of the court over the subject matter of the action may be raised at any time, and is not even waived by consent. If the law withholds from a court authority to determine a case, jurisdiction cannot be conferred, even by the consent of parties." Cerro Gordo Co. v. Wright Co., 59 Iowa 485, 13 N.W. 645; Groves v. Richmond, 53 Iowa 570, 5 N.W. 763; State v. Van Beek, 87 Iowa 569, 54 N.W. 525, 19 L.R.A. 622, 43 Am.St.Rep. 397, and 14 Am. Jur., p. 385, Sec. 191.

In this certiorari proceeding, the petitioner challenges the jurisdiction of the district court to entertain or take cognizance of the subject matter of the original injunction suit. It is the petitioner's contention that because Iowa Code, Sec. 10907, vests in the Supreme Court of Iowa exclusive power to admit persons to practice as attorneys and counsellors in the courts of this state, and since there is no statute expressly prohibiting unauthorized practice of the law, that the power to prevent it must, therefore, be implied from and arise out of the power to license; that the court having the exclusive licensing power is the only court having the implied power to make its license effective by enjoining unlicensed practitioners. We cannot subscribe to this principle. In the first place, the Supreme Court has no original jurisdiction to grant injunctive relief. Independent School Dist. v. Samuelson, 220 Iowa 170, 262 N.W. 169. Secondly, the equity suit is not in any way related to the matter of admission to the bar or disbarment of petitioner.

The gist of the equity suit is irreparable damage to alleged property rights; a civil suit to redress an alleged wrong; subject matter over which the district court most certainly has jurisdiction. There is no claim that the court was not clothed with jurisdiction of the person of the defendant. Therefore, the trial court had jurisdiction of both the subject matter and of the person. Whether the plaintiffs are possessed of a valuable right, privilege, or franchise which is being unlawfully encroached upon by the defendant, to the irreparable damage and injury of plaintiff and others similarly situated, and whether they are entitled to injunctive relief, are all questions to be determined by the trial court after hearing the evidence. They are questions of fact to which the court will be called upon to apply legal principles and therefrom render legal conclusions. The particular subject matter of the suit is new in this state and we do not find that the remedy by injunction has been resorted to in many jurisdictions. This scarcity of legal precedents is no doubt due to the fact that it is universally recognized that one must meet certain statutory requirements and be admitted and have a license before entering upon the practice of law. The few individuals, firms, and corporations which have thought otherwise, in most instances, were summarily dealt with as for contempt of the court having the power to prescribe the rules and regulations for admission to the bar. See case, Rhode Island Bar Ass'n v. Auto Ass'n, 55 R.I. 122, 179 A. 139, 100 A.L.R. 226, extended annotations at page 236. See, also, as bearing on this question, In re Morse, 98 Vt. 85, 126 A. 550, 36 A.L.R. 527; People v. People's State Bank, 344 Ill. 462, 176 N.E. 901; State ex rel. Wright v. Barlow, 131 Neb. 294, 268 N.W. 95; People ex rel. Illinois State Bar Ass'n v. Motorists Ass'n of Illinois, 354 Ill. 595, 188 N.E. 827.

However, respondent is not without legal precedent to support plaintiffs' right to maintain suit in equity for injunctive relief against persons encroaching upon their exclusive rights under their license or franchise to practice law. In the case of Paul et al. v. Stanley, 168 Wash. 371, 12 P.2d 401, there was a suit very similar to the instant equity case. In the state of Washington there was a statute prohibiting persons other than those granted a license from practicing law and providing a penalty for violation of said law and the Washington Court said [page 403]:

" In the case of State

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