Leimer v. Hulse

• Citation: 178 S.W.2d 335,352 Mo. 451
• Decision Date: 03 January 1944
• Docket Number: 38683
• Parties: Walter A. Leimer, Plaintiff in Error, v. Fred B. Hulse, John Grover et al., Defendants in Error
• Court: United States State Supreme Court of Missouri

178 S.W.2d 335

352 Mo. 451

Walter A. Leimer, Plaintiff in Error, v. Fred B. Hulse, John Grover et al., Defendants in Error

No. 38683

Supreme Court of Missouri

January 3, 1944

Rehearing Denied February 7, 1944. Motion to Transfer to Banc Overruled March 6, 1944.

Writ of Error to Jackson Circuit Court; Hon. John F. Cook Judge.

Affirmed.

Walter A. Leimer for plaintiff in error.

(1) The right to labor at a lawful occupation and the goodwill derived therefrom constitute both liberty and property and falls within the inhibitions of the Constitutions, both State and Federal. The trial court erred in subverting the vested rights of plaintiff in error. Poole & Creber Market Co v. Breshears, 125 S.W.2d 23, 343 Mo. 1143; State v. Addington, 77 Mo. 110; Gleason v. Thaw, 185 F. 354, 34 L.R.A. (N.S.) 894; Mille Reif v. Randau, 1 N.Y. (2d) 515, 166 Misc. 247; Dorchy v. State of Kansas, 272 U.S. 306, 47 S.Ct. 86; Dehydro, Inc., v. Tretolite Co., 53 F.2d 273; Timothy Brehnan v. United Hatters, 65 A. 168, 9 L.R.A. (N.S.) 254; Munden v. Harris, 134 S.W. 1076; Ex parte Virginia, 100 U.S. 339; Algeyer v. State of Louisiana, 165 U.S. 589, 17 S.Ct. 431; The Slaughter House Cases, 16 Wall. 36, 21 L.Ed. 394; State ex rel. Miles v. Guion, 109 S.W. 595, 210 Mo. 127; Hoff v. State, 197 A. 75; Block and Grieef v. Schwarz, 76 P. 22, 101 Am. St. Rep. 971. (2) The trial court erred in the arbitrary abuse of its power. In order to justify the State in interposing its authority on behalf of the public, it must appear, First, that the interests of the public generally, as distinguished from those of a particular class, require such interference. Second, that the means are reasonably necessary for the accomplishment of the purpose and not unduly oppressive on individuals. Lawton v. Steele, 152 U.S. 133, 14 S.Ct. 499; Grossman v. Carminez, 79 N.Y.S. 900; Colon v. Lisk, 47 N.E. 302, 153 N.Y. 188, 60 Am. St. Rep. 609; Western Union Telegraph v. Pendleton, 122 U.S. 347, 7 S.Ct. 1126. (3) The trial court erred in attempting to assume jurisdiction of the within cause after plaintiff in error had duly filed an affidavit and application for change of venue from said court because of the judge thereof being an interested party. That the entire proceedings thereafter were coram non judice and void. State ex rel. v. Smith, 176 Mo. 90. (4) The trial court erred in arbitrarily striking the pleadings of plaintiff in error from the files without valid reason or legal justification and in refusing him the rights to make a valid defense of his property and rights, before said court. Amend. XIV, U.S. Constitution; McVeigh v. United States, 11 Wall. 259; Windsor v. McVeigh, 93 U.S. 267; State ex rel. Shackelford v. McElhinney, 145 S.W. 1139, 241 Mo. 592. (5) The trial court erred in holding in effect that plaintiff in error, a citizen of the United States, had forfeited his constitutional rights as a free man by being admitted to practice law in the State of Missouri. Ex parte Steinman, 95 Pa. St. 220, 40 Am. St. Rep. 637. (6) The trial court erred in attempting to exercise the power of the State on behalf of a few members of the Kansas City Bar Association and in submerging the rights of litigants to exonerate the conduct of a few lawyers. Lawton v. Steele, 152 U.S. 133, 14 S.Ct. 499. (7) The means used to regiment the bar of Missouri and plaintiff in error and to arbitrarily confiscate his property and property rights without legal justification and excuse and due process of law is contrary to and violative of organic and constitutional law. Bill of Rights, Art. III, U.S. Constitution; Amend. XIV, U.S. Constitution. (8) The means used in employing agents of the court as prosecutors of the within cause denies plaintiff in error and other members of the bar of Missouri a fair and impartial hearing. Bill of Rights, Mo. Constitution, U.S. Constitution, Amend. XIV; Mo. Constitution, Art. II, Sec. 30, due process of law. (9) The trial court erred in holding that the exposing of corruption in the Probate Court of Jackson County, Missouri, and of members of the Bar, by plaintiff in error in his attempt to protect the liberty and property of his clients from depredations, before courts of competent jurisdiction, constituted moral turpitude on the part of the plaintiff in error. Nalle v. Oyster, 230 U.S. l.c. 270; Henderson v. Cape Trading Co., 316 Mo. 384, 289 S.W. 332; Rule 35, Sec. 1, Supreme Court, Missouri. (10) The trial court erred in its findings and conception of moral turpitude. In re Wallace, 323 Mo. 203, 19 S.W.2d 625; In re McNeese, 346 Mo. 425, 142 S.W.2d 33; Henderson v. Cape Trading Co., 316 Mo. 384; United States ex rel. Mylius v. Uhl, 203 F. 152; 41 C.J. 212; Bouvier, Law Dictionary (3 Rev. Ed.), p. 2247; Newell on Slander and Libel (3rd Ed.), sec. 66; Ruble v. Kirkwood, 266 P. 252, 125 Ore. 316; Hutto v. Atlantic Life Ins. Co., 58 F.2d 69; Traders & General Ins. Co. v. Russell, 99 S.W.2d 1079; State v. Mason, 43 P. 651, 229 Ore. 18; Blackburn v. Clark, 41 S.W.2d 430; Baxter v. Mohr, 76 N.Y.S. 982, 37 Misc. 833; State ex rel. Conklin v. Buckingham, 84 P.2d 49; In re Williams, 113 S.W.2d 353, 128 S.W.2d 1098, 233 Mo.App. 1174. (11) The trial court erred in holding that malice can be predicated upon matter which is pertinent and material to a case subject to inquiry before a court. The petition fails to state a cause of action upon which relief can be had. Nalle v. Oyster, 230 U.S. l.c. 170; Marsh v. Ellsworth, 50 N.Y. 309; Burdetto v. Argyle, 94 Ill.App. 171; Gaines v. Aetna Life Ins. Co., 104 Ky. 695; Warren v. Pulitzer Publishing Co., 78 S.W.2d 404; Henderson v. Cape Trading Co., 316 Mo. 384. (12) The trial court erred in attempting to assume jurisdiction of alleged contempts committed before tribunals other than the trial court in count II. That alleged contempts are triable only before the court alleged contemned and then in a summary manner. The petition fails to state a cause in contempt or in malicious prosecution, and is based on conclusions of the pleader. The arbitrary attempt to despotically destroy the reputation and property of plaintiff in error by indirect and unlawful means was oppressive, unreasonable, unjust and unwarranted. State ex inf. v. Sheppard, 177 Mo. 205; State ex rel. Haughey v. Ryan, 182 Mo. 349; McNalley v. Rouse, 264 S.W. 383; Ex parte Bradley, 7 Wall. 364; In re Steiner, 195 F. 300; In re Debbs, 158 U.S. 564; Ex parte LeMond, 295 Mo. 586, 245 S.W. 1057; In re Neville, 117 F. 448; Rapalje on Contempt, sec. 13, p. 15; Prince v. State, 108 So. 716; Smith v. State, 59 P. 941; Durham v. United States, 289 F. 376. (13) Defendants in error are guilty of laches in attempting to bring summary contempt charges on matters which were of public record and in a manner not provided for by law after the lapse of many years, wherein the witnesses had either died or left the jurisdiction of the court. The use of such charges was unreasonable and oppressive. In re Williams, 128 S.W.2d 1098, 233 Mo.App. 1174. (14) There is a misjoinder of causes of action which violates the statutory and organic law and prevents and precludes plaintiff in error from making a proper and adequate defense to his rights and property. Mulholland v. Rapp, 50 Mo. 42; Otis v. Bond, 35 Mo. 128; Roberts v. Anderson, 254 S.W. 723. (15) The trial court erred in its unreasonable discrimination in holding in effect that plaintiff in error was not on a parity with the butcher, the baker and barber in the exercise and protection of his property and property rights. U.S. Constitution, Amend. XIV. (16) The means used to regiment the bar of Missouri and the delegation of judicial power by edict, to a committee which allows and permits the said committee to rise above the source of its creation and subject members of the bar and plaintiff in error herein to coercion, intimidation and despotism, with the resultant denial of free access to the courts of the land, creates an oppression which is contrary to and violative of the Constitution and organic law. U.S. Constitution, Amend. XIV; Mo. Constitution, Art. II, Sec. 10, "Courts must be open." Art. II, Sec. 4, "Purpose of Government," State ex rel. v. Press, 159 Mo. 410, 60 S.W. 91; State ex rel. v. Murphy, 130 Mo. 10, 31 S.W. 594. (17) The trial court erred in holding that the filing of pertinent pleadings by plaintiff in error on behalf of his clients before courts having jurisdiction of the parties and the subject matter constituted contempt or moral turpitude. Northcutt v. McKibben, 159 S.W.2d 69; Kansas City Gas Co. v. Kansas City, 198 F. 500; Wilmington, W. & R. Co. v. Board of R.R. Comm., 93 F. 33; McCormick v. Ford Mfg. Co., 232 S.W. 1011; Nalle v. Oyster, 230 U.S. 170; Warren v. Pulitzer Publishing Co., 78 S.W.2d 404. (18) The petition of complainants fails to state a cause of action in disbarment. In re Seizer, 267 S.W. 922, 306 Mo. 356; People ex rel. Chicago Bar v. Gorindar, 182 N.E. 732; People v. Gilmore, 345 Ill. 28, 177 N.E. 710; In re Conrad, 105 S.W.2d 1, 340 Mo. 582. (19) The petition of complainants charging violations of the rules of this court over a period of more than ten years and before such rules were issued is retrospective. Courts do require physical impossibilities. Graham Paper Co. v. Gehner, 59 S.W.2d 49, 332 Mo. 155.

Frank W. Hayes and Roscoe P. Conkling for defendants in error.

(1) The right to disbar attorneys has been exercised by the courts as an inherent power and is not contrary to or violative of organic and constitutional law. In re Richards, 333 Mo. 907, 63 S.W.2d 672; In re Sparrow, 338 Mo. 203 90 S.W.2d 401. (2) With the inherent power to disbar attorneys goes the right to promulgate rules of procedure and the delegation of the power of investigation and institution of disbarment proceedings in the Court's Bar...