Johnson v. State

• Decision Date: 02 July 1907
• Parties: JOHNSON v. STATE.
• Court: Alabama Supreme Court

44 So. 671

152 Ala. 93

JOHNSON v. STATE.

Supreme Court of Alabama

July 2, 1907

Appeal from Circuit Court, Shelby County; A. H. Alston, Judge.

Proceedings by the Alabama State Bar Association for the disbarment of Wiley T. Johnson, a licensed practicing attorney. From a judgment of disbarment, Johnson appeals. Affirmed.

It was based upon an affidavit, signed by W. B. Brown, by Borden H Burr, the solicitor of the Seventh judicial circuit. The charges grew out of the letter addressed to Judge John Pelham at Anniston, Ala., with full postage and register charges paid. The letter is in the following language: "Helena Ala., Jan. 1, 1906. Hon. John Pelham, Anniston, Ala.--Sir: In company yesterday with E. S. Carey, on my way to Birmingham the said Mr. Carey tells me that while he was in jail and in the nighttime, you called on him and expressed your sorrow for him, and that you acted in the way you did towards him much on account of your dislike for me. It is useless for me to tell you my contempt for any man that is small enough to do such an act and then admit it. In the future I want you to act the gentleman (in court) towards me, and on the outside of court you will have to do it, or I will know why. I was born and raised in Shelby county, and am willing to go on my record to the grave for my fair open dealing with and to my fellowman. I can have no patience or respect for a circuit judge who will so far forget his oath of record as to meet (at night), and during the trial of E. S. Carey, with the solicitor and the county solicitor, and feast on partridges and discuss how and why a certain man should be tried. I am due you nothing, but you owe me apology or denial of Mr. Carey's imputation. Make one or both, or else I shall feel it my duty to denounce you in the county papers as a poltroon, liar, and cur. Wiley T. Johnson." The issues of fact submitted to the jury were found in favor of the state and against the defendant, and a judgment of disbarment followed; and from this judgment this appeal is prosecuted.

Sam Will John, for appellant.

Borden H. Burr, Cecil Browne, and C. C. Whitson, for the State.

DENSON J.

This is a disbarment proceeding, prosecuted in the name of the state of Alabama against Wiley T. Johnson. The proceeding was instituted by the solicitor of the Seventh judicial circuit, on a written statement signed by the chairman of the Central Council of the Alabama State Bar Association, attested by the secretary of the Association, and accompanied by the written affidavit of W. B. Browne, making charges for the suspension or removal of said Wiley T. Johnson as an attorney at law, and setting forth facts upon which such suspension or removal should be based. This is in accordance with the provisions of the act, amendatory of certain sections of the Code, relating to disbarment proceedings, approved October 3, 1903. Gen. Acts 1903, p. 346. Under the act the duty devolves on the solicitor to prosecute all disbarment proceedings, and in the seventh section of the act it is provided that "the court may, upon the motion of said solicitor, and upon good cause shown, at any time require the said Alabama State Bar Association to give security for the costs of such proceedings to be approved by the court within ten days from notice to the secretary of said Association, by said solicitor," etc. Obviously, from the very language of this section, it is only on motion of the solicitor that security for costs may be required, and the court properly overruled the motions made by the defendant to require security for costs to be given.

After the motion to require security for costs to be given, and the motion to dismiss the cause because no security for costs was filed at the time the accusation was filed, were overruled, a plea pendente lite was filed, and a demurrer thereto was sustained. The action of the court in sustaining the demurrer to the plea constitutes a ground in the assignment of errors. Unless an assignment of error is insisted upon in the brief of the appellant's counsel, no duty devolves on this court to consider the assignment, and it will be treated as waived. In respect to the assignment of error presenting the ruling of the court on the demurrer to the plea pendente lite, appellant's counsel in his brief simply recites the facts that the plea was filed, the substance of the plea, that there was a demurrer, and that the demurrer was sustained. No argument is presented nor authority cited in support of the assignment of error. Mere recital of what is shown by the record cannot be considered as an insistence on the assignment, and we shall, in keeping with our decisions in respect to failure to insist on an assignment of error, pretermit consideration of the merits of the assignment in question. Western Railway of Ala. v. Russell, 144 Ala. 143, 39 So. 311, and authorities there cited; Scarbrough v. Borders, 115 Ala. 436, 22 So. 180. The same is true in respect to all the other grounds of error presenting for review rulings of the court on the pleadings.

The appellant suffers no injury from the foregoing conclusion because the merits of the case are clearly presented by the record, and the point most insisted upon in the argument at the bar, and on which the guilt or innocence of the defendant must be determined, remained in the case after the several rulings, were made, and would have remained if the several rulings (except that on the plea pendente lite) had been in defen...