McCord v. State

• Decision Date: 23 January 1930
• Docket Number: 7 Div. 743.
• Parties: MCCORD v. STATE EX REL. ALLEN ET AL.
• Court: Alabama Supreme Court

126 So. 873

220 Ala. 466

MCCORD v. STATE EX REL. ALLEN ET AL.

7 Div. 743.

Supreme Court of Alabama

January 23, 1930

Appeal from Circuit Court, Etowah County; R. B. Carr, Judge.

Disbarment proceeding by the State of Alabama, on the relation of George C. Allen and others, against Roy D. McCord. From a judgment of disbarment, defendant appeals. Reversed and remanded.

SAYRE J., dissenting in part.

Merrill & Field, of Anniston, J. M. Miller and E. O. McCord, both of Gadsden, and Frank B. Embry, of Pell City, for appellant.

Charlie C. McCall, Atty. Gen., and Thos. E. Knight, Jr., Asst. Atty Gen., for appellees.

SAYRE J.

The proceeding in this case was instituted by the filing of an information charging appellant with misconduct in his profession as an attorney at law and seeking his disbarment because of such misconduct.

At the outset of his defense, appellant pleaded in abatement the pendency of a former proceeding against himself for the same misconduct. The proceeding in this case was prosecuted on the relation of George C. Allen and twenty-eight others. The record of the former proceeding was not set out as the rules of good pleading required in order that the court might determine for itself the legal identity of the two proceedings. The demurrer to appellant's said plea in abatement was sustained, and that ruling furnishes the basis for the first of his more than two hundred assignments of error. This court has held that a proceeding of this nature, though not strictly criminal, is of the nature of a criminal proceeding. Thomas v. State, 58 Ala. 365. But that it is not a proceeding for the punishment of crime is abundantly shown by its inherent nature, by the first subdivision of section 6256 of the Code as follows, which makes mandatory provision for the removal of an attorney: "(1) Upon his being convicted of a felony other than manslaughter, or of a misdemeanor involving moral turpitude; in either of which cases the record of his conviction is conclusive evidence. (2) When any judgment is rendered against him, for money collected by him as attorney, upon which judgment an execution has issued, and been returned no property; in which case the record of the judgment and execution is conclusive evidence"-and the succeeding sections which have been in the Codes of the last seventy-five years without question of its constitutionality, and by the great weight of authority. 6 C.J. p. 602, § 64. It is not a proceeding inter partes. The courts all hold that such a proceeding is neither a civil action nor a criminal prosecution. "Like contempt proceedings, proceedings for disbarment are the exercise on the part of a court of their inherent right and power to preserve the orderly administration of justice." "The order entered is but an exercise of the disciplinary jurisdiction which it (the court) has over such officers." 6 C.J. p. 602, § 64, notes 12 and 13. In re Lentz, 65 N. J. Law, 138, 46 A. 761, 763, 50 L. R. A. 415, it was held that, in exercising summary jurisdiction over attorneys, the courts have in view two leading objects, viz.: To compel them to deal fairly and honestly with their clients; and to remove from the profession attorneys whose misconduct has proved them to be unfit for its duties and responsibilities. "In the attainment of these objects the idea of punishment has no appropriate place." The statute, section 6256 of the Code, defines causes for which an attorney must be removed (that is, disbarred), and other causes for which he may be removed or suspended are stated in section 6257. And section 6258 provides that "the proceedings to remove or suspend an attorney, as provided for in the last two sections, may be taken by the court of its own motion, or upon the motion of any third party." These sections of the Code make no material change in the nature of the proceeding or in its method of procedure as it existed at the common law. The court is still virtually a party, knows its own record, and may be relied upon to protect an attorney under charges from unnecessary harassment. We find no authority or precedent for the plea in abatement in a cause of this character. Nor is any reason suggested by appellant why the judgment in this cause should be reversed on account of the ruling against the plea more convincing than section 5658 of the Code, which is: "In suits by informers, the first filed in the office"-meaning, as we assume, the office of the clerk of the court-"has precedence for the same cause of action, and the latter must abate." The section was brought into the Code of 1907 at the same time with what is now section 5657. We think the purpose of both sections was to regulate suits inter partes, ordinarily so called, the especial purpose of the last-numbered section being to allow a suit by one informer to be pleaded in abatement against another suit on the same cause of action by a different informer. This last-numbered section has reference to qui tam actions which may be brought by any person who will sue; the necessity for the section arising out of the fact that in such cases the party who first sues is entitled to the penalty. 1 C.J. p. 49, § 45. Appellant cites Town of Tallassee v. State, 206 Ala. 169, 89 So. 514, 20 A. L. R. 1127. That was an action quo warranto to annul the charter of a municipality, and the decision was that a judgment in such proceeding was res adjudicata as against a different relator seeking to dissolve the corporation upon the same ground. That case, and as well Sloss-Sheffield Co. v. Milbra, 173 Ala. 658, 55 So. 890, the latter an action for damages for the death of a servant, is without point in the present cause. Our judgment is that there should be no reversal in this cause on account of the trial court's ruling against appellant's plea in abatement.

The statement of grounds for disbarment contained several different specifications of improper conduct. A jury returned a special finding of fact on consideration of which the court rendered judgment finding appellant guilty of deceit and willful misconduct in his profession as an attorney at law and fixed the punishment, as the court termed it, at permanent removal from the practice of his profession in any court of this state. This judgment must be referred to specification 2 of the charge preferred. The findings of the jury under other specifications, if permitted to stand by the court, operated as an acquittal of the charges therein contained. Our inquiry therefore on this appeal is limited to the charge presented in the second specification.

As to specification 2, which is set out in the report, appellant contends that it does not sufficiently show whether the misconduct charged was done by him in his capacity as attorney at law or as a notary public. This refers of course to the charge that appellant, continuando, after alleging the facts in the forepart of the specification, "did falsely and fraudulently certify as a notary public that the said Amanda Knox acknowledged before him on that day that, being informed of the contents of the conveyance, she executed the same voluntarily and did make said certificate in writing as a part of said deed." This allegation of misconduct is due to be read in connection with the preceding charge, contained in the same specification, to the effect, to state its substance in brief, that appellant having undertaken to draw a will for Amanda Knox, did falsely and fraudulently procure her to sign a deed purporting to convey the property, which she wished to devise to her daughter, to one James Wolf, an illiterate negro janitor in the building in which appellant kept his office, who afterwards, on appellant's procurement, conveyed the same to appellant's wife. It is thus made sufficiently to appear that the certificate of acknowledgment was part and parcel of a scheme to get title to Amanda Knox's property. And since, on the allegations of the specification, it appears that appellant came into relation with the Knox woman and directed and controlled what she did in the premises in virtue of his office as an attorney, what he is charged with having done as a notary can no more be segregated from what he did as an attorney than the fact of the procurement of the certificate can be eliminated from the process by which the property of the Knox woman purported to have been divested out of her and invested in appellant's wife. For the reason stated, there was no error in that ruling of the trial court by which appellant's demurrer was overruled, and this we say without intending to change the rule of the authorities, which is that formal and technical pleading is not essential to this proceeding. 6 C.J. p. 605, § 69; Id. p. 603, § 65. The specification sufficiently informed appellant that he was charged with conduct unbecoming an attorney at law and with the particulars of the charge.

Appellant complains of rulings on questions of evidence shown by assignments of error 9, 10, 11, 12, 13, 23, 24, 41, 43, 45 46, 47, 48, 49, 50, and 51. Some of the evidence excluded by some of the rulings thus indicated related to matters as to which the jury by their special findings in effect acquitted appellant and for that reason require no statement at our hands. Others of this group of assignments are based upon the proposition that appellant was entitled to show the presence at the meeting of the Gadsden bar, which resolved to prefer charges against him, of certain members of the bar who signed the information-so to speak for convenience only of the charges preferred-this as tending to prove bias or prejudice against appellant, and authorities are cited in which it is held that bias or prejudice on the part of a witness may be shown. But these members of the bar were not witnesses, as to...