Stanley v. Jones

• Decision Date: 10 April 1941
• Docket Number: 36003.
• Citation: Stanley v. Jones, 197 La. 627, 2 So.2d 45 (La. 1941)
• Court: Louisiana Supreme Court
• Parties: STANLEY, Atty. Gen., v. JONES.

2 So.2d 45

197 La. 627

STANLEY, Atty. Gen., v. JONES.

No. 36003.

Supreme Court of Louisiana

April 10, 1941

Rehearing Denied April 28, 1941. [Copyrighted Material Omitted]

Eugene Stanley, Atty. Gen., and J. I. McCain, Sp Asst. Atty. Gen., for petitioner.

John R. Hunter & Son, of Alexandria, and Cawthorn, Golsan & Hunter, of Shreveport, for defendant James W. Jones Jr.

ROGERS Justice.

This is an original proceeding instituted by Eugene Stanley, Attorney General, under the authority of sections 1 and 5 of Article 9 of the Constitution of 1921, to remove James W. Jones, Jr., from the office of Judge of the Tenth Judicial District Court for the Parishes of Natchitoches and Red River.

Section 1 of the constitutional article enumerates a number of causes for the removal of a judge of a district court. Section 5 of the article authorizes the Attorney General to bring a suit for such removal.

The matters and things which the Attorney General asserts as causes for the removal of defendant from his office are set forth in an original petition, containing eighty-four articles, and a supplemental petition, containing thirty articles. The defendant excepted to both petitions on a number of grounds. When the case was called for hearing on the exceptions, it was submitted on briefs filed by the parties.

The first question that arises under the exceptions is whether the defendant was legally cited or served with process.

The record shows that when a copy of the original petition was filed in this Court, the Chief Justice issued an order requiring defendant to answer the petition within fifteen days from the date of service and citation. A copy of the petition and attached order was forwarded by the Clerk of this Court to the Sheriff of the Parish of Natchitoches, where the defendant resides. The defendant was personally served with these papers, and a return showing the service was made by the Sheriff in due course.

Whatever may be the merit of the exception, considered from a technical standpoint, it can not avail defendant. After he was served with a copy of the petition and order, defendant, without reservation, applied for and obtained an extension of time within which to plead. Defendant was also present with his attorney and participated in the taking, under an order of court, of the deposition of J. R. Cooley, a witness for plaintiff. By these acts, the defendant recognized that the case was in court and that he intended to submit to the jurisdiction of the court.

Any act of the defendant, except to object to the jurisdiction over his person which recognizes the case as in court, constitutes a general appearance. 6 C.J.S., Appearances, � 13, p. 42. A general appearance is one whereby the party appears and submits himself to the jurisdiction of the court for all purposes. 6 C.J.S., Appearances, � 1(a), p. 5; 3 Ame.Jur., Appearances, � 3, p. 783.

A general appearance waives any defects in the process, or notice, the steps preliminary to the issuance, or in the service or return thereof. 6 C.J.S., Appearances, � 17, c, p. 51.

An objection to the mode in which a case is brought before a court of competent jurisdiction must be made before a general appearance and a plea in bar. Schenley v. Commonwealth, 36 Pa. 29, 78 Am.Dec. 359.

A defendant who appears in the first instance in a case and moves for an extension of time to plead will be considered as having made a general appearance. 3 Amer.Jur., Appearances, � 21, p. 794.

In Modisette & Adams v. Lorenze, 163 La. 505, 112 So. 397, this Court, in line with the general rule, held that defendant waives his right to plead to the jurisdiction of the court ratione personae by first asking for, and obtaining, further time in which to answer the suit, without any protest or reservation whatever.

Defendant appeared not only to ask for an extension of time within which to plead, but also for the purpose of crossexamining J. R. Cooley, one of the plaintiff's witnesses. The defendant insists that while he waived the notice of plaintiff's intention to take the testimony of the witness, he specially reserved all his rights, including his right to file any exceptions he wished to plead.

Defendant is mistaken. The record shows that while the order of this Court called for the taking of the deposition by Herman L. Midlo, a notary public for the Parish of Orleans, by consent of counsel representing the parties, the deposition was actually taken before J. A. Gannon, a notary public residing near Gorum, in the Parish of Natchitoches. In addition to the agreement relative to the change in notaries, the parties entered into the following agreement: 'It is agreed that the deposition is to be taken with counsel reserving all rights of objection to be made at the time the testimony is offered in evidence. It is agreed that the procedure in this matter is acceptable to both sides.'

The objections referred to in the agreement are clearly objections that counsel for defendant might desire to make to the admissibility or relevancy of the testimony and not for the purpose of reserving any right to file exceptions or other pleadings in the case.

The cross-examination of plaintiff's witness Cooley, by defendant's attorney, in defendant's presence, constituted an appearance by defendant in the suit.

In True Tag Paint Co. v. Wellman, 142 La. 1038, 78 So. 109, this Court stated: 'That any appearance except distinctly for the sole purpose of objecting to the jurisdiction or to the citation amounts to an appearance which stands in place of citation.'

In City of New Orleans v. Walker, 23 AlAnn. 803, this Court declared: 'A want of citation is cured by the appearance of defendant in the suit for any other purpose than to allege the want of citation.'

In First National Bank v. Johnson, 130 La. 288, 57 So. 930, 931, this Court said: 'The rule is that an appearance to the suit, except for the purpose of objecting to the jurisdiction, or to the process or citation, subjects defendant to the jurisdiction of the court.'

The defendant's appearance in the suit for the purpose of obtaining an extension of time within which to plead and for the purpose of cross-examining a witness for the plaintiff, without distinctly objecting to the jurisdiction or the citation, amounted to an appearance which stands in place of the citation.

The next question requiring consideration is defendant's plea of prematurity, which is predicated on the contention that defendant has never been charged, placed on trial, or convicted in the criminal courts on any of the charges set out in the petition, a prerequisite for the institution of a suit for the removal from office. Defendant's brief does not contain any argument in support of the plea. For our own part, we do not find any merit in it.

In the case of State ex rel. Attorney General v. Lazarus, 39 La.Ann. 142, 1 So. 361, 375, this Court said: 'The contention of the defense that the malfeasance or nonfeasance or gross misconduct charged, must, as a condition precedent to removal, be proved to be criminal or corrupt, is manifestly erroneous. It is absolutely untenable, either in reason or on authority.'

In Saint v. Irion, 165 La. 1035, 116 So. 549, the Court held that a suit to remove a state officer was a civil and not a criminal proceeding. The cause of action in such a suit does not depend upon a prior conviction of the defendant for a criminal offense. There are some causes for removal set forth in section 1 of Article 9 of the Constitution, such as incompetency or habitual drunkenness, which are not criminal offenses. Any one of these causes, if proved, would be sufficient to require a judgment of removal.

Defendant filed an exception of no cause or right of action, the first ground of which is leveled at the offenses it is alleged he committed prior to his present term of office. Defendant contends that these offenses which are set forth in articles 16 to 22 of the petition, both inclusive, do not furnish a cause for his removal from office.

The petition, in paragraph 2, shows that the defendant served a term as judge of the Tenth Judicial District Court for the period of 1920 to 1924. He was again elected to the office for the term beginning January 1, 1931, and was re-elected in 1936 to hold the office until 1943. The defendant has served a six-year term beginning January 1, 1931, and is at present serving another term of six years to run through the year 1942.

This exception is in effect that the scope of the hearing should be limited to the offenses which the petition alleges were committed by defendant since his last election to the office in the month of November, 1936.

There appears to be some divergence of views among the courts with respect to the question of whether an incumbent could be removed from office because of his misconduct committed during a prior term. In an annotation to the case of Allen v. Tufts, decided by the Supreme Judicial District Court of Massachusetts, contained in 17 A.L.R. page 274, on the question of the removal of a public officer for misconduct during the previous term, it is said:

'The cases on the present question are in conflict. This is due in part to differences in statutes and constitutional provisions, but also in part to a divergence of views with respect to the question whether the subsequent election or appointment condones the prior misconduct. It cannot apparently be said that there is a decided weight of authority on either side of the question, although the courts and text-writers have sometimes regarded the weight of authority as denying the right to remove one from office because of misconduct during a prior term; and some courts which have held to the contrary have...