Krasner v. Boykin

• Decision Date: 30 June 1936
• Docket Number: No. 25073.,25073.
• Citation: 186 S.E. 701,54 Ga.App. 29
• Parties: DE KRASNER. v. BOYKIN.
• Court: Georgia Court of Appeals

54 Ga.App. 29

186 S.E. 701

DE KRASNER.

v.BOYKIN.

No. 25073.

Court of Appeals of Georgia, Division No. 1.

June 30, 1936.

Syllabus by the Court.

An attorney at law, admitted to practice in the courts of this state, is an officer of the court. As such, the court may by virtue of an inherent power vested in it, admit, suspend, discipline, or disbar such attorney. For this no legislative permission is considered requisite; and if a statute exists, it is not regarded as exclusive in its provisions. In suspending the defendant in the present case, until disbarment proceedings already pending against him were disposed of, the court acted upon acts of the defendant which transpired in its presence and through its actual knowledge that defendant had been convicted of a crime involving moral turpitude, without any notice to the defendant of its intended action, except a recital to him of the facts upon which it would pass the order suspending him. Seld, the court did not act beyond its powers in passing the order complained of.

Error from Superior Court, Fulton County; John D. Humphries, E. D. Thomas and Edgar E. Pomeroy, Judges.

Proceeding by Norman De Krasner, relator, against John A. Boykin. To review a judgment suspending the relator from the practice of law, the relator brings error.

Affirmed.

Norman De Krasner, of Atlanta, for plaintiff in error.

John A. Boykin, Sol. Gen., James A. Branch, Reuben R. Arnold, Marion Smith, and J. Walter Le Craw, all of Atlanta, for defendant in error.

GUERRY, Judge.

On June 13, 1935, there came on for hearing before three judges of the superior court of Fulton county, sitting in banc, the case of Norman De Krasner v. John A. Boykin, being a proceeding in which movant prayed the disbarment of respondent. It appears from the bill of exceptions in this court that both sides announced ready for trial. After some preliminary colloquy between counsel and the court, movant presented a motion to disqualify one of the judges therein sitting, on the ground of some unusual action of his in setting the case for hearing. This motion was overruled. Movant then presented to the court a motion to enter judgment of disbarment against respondent for his failure to file answer on or before June 10, and this motion was overruled. It appears that the case was set for hearing by rule nisi on June 10, but was expressly extended to June 13, by proper order of the court. Counsel then presented to the court a motion for continuance and the motion was overruled. Counsel thereupon tendered to the court a bill of exceptions based upon the refusal to enter judgment of default, and the court instructed movant to preserve his exceptions by pendente lite and proceed with the merits of the accusation made against the respondent, which movant refused to do. The court thereupon issued an order of dismissal of the proceeding, and further said: "Now, Mr. De Krasner, you have been convicted by a jury in this court of charges, which, if true, would renderyou unworthy to appear before this court as a lawyer. That case was prosecuted to conviction by Mr. Boykin, the solicitor-general of this circuit, who had the backing of the bar association in this prosecution. Thereafter, you asked the court to appoint a solicitor pro tern in order that you might prefer charges of a criminal nature against Mr. Boykin. The court appointed a solicitor pro tern, and gave you full opportunity to present those charges to the grand jury of this county, and the grand jury heard them, and refused to return a true bill, denounced the prosecution as malicious, and commended Mr. Boykin for the work he has done in the prosecution of certain cases, among which was your case. You have now presented to this court, a petition for disbarment of Mr. Boykin, based substantially on the facts that you sought to have him indicted on, and the court set the case down specially for a hearing, and advised you in advance that the case would proceed to a determination on this date. After being commanded by the court to proceed to offer evidence as to the serious charges you have made against Mr. Boykin, you have refused to do so, and the court has now dismissed the petition. The court will immediately sign an order, suspending you from the practice of law in Georgia, until the serious charges against you have been ultimately disposed of, and it has been determined whether or not you shall be retained on the list as one of the lawyers of the Georgia bar. That order will be immediately signed, and you will not be permitted to appear as counsel in any case, until these serious charges have been finally disposed of by the court. The court has not taken this action ill-advisedly, but the very nature of your attitude toward the court, and your very method of presenting these charges, and your refusal to proceed with them, and your efforts to lay a foundation for a technical procedure, and not a procedure on the merits of the case, are sufficient, in my personal opinion at least, to justify this suspension of you from the practice of law before this bar. That order will be promptly signed, and you are now suspended, with no right to address any court on behalf of anybody, unless it is your personal case."

The court thereupon passed the following order: "On this the 13th day of June, 1935, there came on to be heard before the undersigned three judges of this court the case instituted by the above named Norman De Krasner, purporting to be a pro ceeding in behalf of the State on his relation against John A. Boykin, being case No. 107134, seeking to obtain the disbarment of the said John A. Boykin. When the case was called for hearing the said De Krasner announced ready, and thereupon moved the court to enter a judgment of disbarment against the said John A. Boykin by. default and without permitting a hearing to the said John A. Boykin on the merits of the charges, which motion the court overruled. An answer having been filed by said John A. Boykin. Thereupon the said De Krasner moved a continuance of the case on grounds which in the opinion of the undersigned judges were not only unfounded but wholly frivolous. Thereupon the court overruled the said motion to continue and directed the said De Krasner to proceed at once to submit to the court the evidence on which he had undertaken to bring in the name of the State the grave charges against the member of the bar who was made the respondent in the petition filed by him. When the said De Krasner refused to proceed to submit to the court such information, the court warned the said De Krasner that he was under conviction of grave charges himself, according to the records of this court; that he had assumed to file a petition in the name of the State making grave charges against a member of the bar of the State; and that the court positively directed him, he being still a member of the bar and an officer of the court, to proceed to put before the court the evidence and information on which he had assumed to take the aforesaid steps. Thereupon the said De Krasner, notwithstanding the positive command of the court and notwithstanding the warning of the court, positively and absolutely refused to proceed and refused to lay before the court any information or evidence in support of his said charges. The court now adjudges that the action of the said De Krasner constituted a grave contempt of this court and presented a serious dereliction in the duty due by a member of the bar to the court. The court further adjudges that his said conduct in said cause shows him guilty of deceit and wilful misconduct in his profession. The court further adjudges that the said conduct constituted indecent behavior in the court house whereby he became a nuisance to the court and to his brother members of the bar and to the public. It further appears from the records of this court, as well as having beenstated by the said De Krasner in the aforesaid hearing, that the said De Krasner is now under conviction in this court for a crime involving moral turpitude, as to which conviction motion for a new trial has been filed and has not yet been heard. It further appears from the records of this court that the said De Krasner has heretofore and after his conviction, he having been prosecuted therein by the said John A. Boykin, as solicitor general, filed an affidavit that the said John A. Boykin was guilty of an indictable offense, and caused the appointment of a solicitor-general pro tern to prepare and present the said charges to the grand jury, the said charges being substantially the same as those thereafter set out by the said De Krasner in his petition for disbarment against John A. Boykin. The court appointed an honorable and able member of the bar to act as solicitor-general pro tem, and the said solicitor-general pro tem laid the whole matter before the grand jury. The grand jury returned a no bill and returned a special presentment adjudging that the said De Krasner's action had been malicious, and that the said John A. Boykin was to be highly commended. It further appears from the records of this court that there is pending a disbarment proceeding in this court against the said De Krasner. In consideration of all of the foregoing it is now ordered and adjudged that the license and rights of the said Norman De Krasner to practice law in this State, or to appear as an attorney at law before any court in this State, be and the same is hereby immediately suspended, the said suspension to continue until the final determination of the said proceedings for his disbarment."

In the bill of exceptions before this court, De Krasner assigns error upon the order of suspension upon the ground that it was void as being in conflict with, repugnant to, and violative of, paragraph 23, § 1 of article 1, of the constitution of this state (Code 1933, § 2-123), which provides that "The legislative, judicial and executive powers shall forever remain separate and distinct, and...