State Bar Committee v. Stumbaugh

• Decision Date: 20 December 1938
• Docket Number: No. 35866.,35866.
• Parties: STATE BAR COMMITTEE v. STUMBAUGH.
• Court: Missouri Supreme Court

123 S.W.2d 51

STATE BAR COMMITTEE v. STUMBAUGH.

No. 35866.

Supreme Court of Missouri, Division No. 2.

December 20, 1938.

Appeal from Circuit Court, Madison County; Taylor Smith, Judge.

Disbarment proceeding commenced in the circuit court on information of the State Bar Committee of the Twenty-seventh Judicial Circuit against W. H. Stumbaugh. From a judgment disbarring the defendant, he appealed to the St. Louis Court of Appeals, which transferred the cause to the Supreme Court, 109 S.W.2d 874, on theory that appellate jurisdiction was in the Supreme Court.

Judgment of trial court affirmed.

Threlkeld & Coffer, of Flat River, for appellant.

Joseph H. Grand and Lon Hocker, Jr., both of St. Louis, for respondent.

WESTHUES, Commissioner.

The State Bar Committee instituted disbarment proceedings against the appellant in the circuit court of Madison county, Missouri. A hearing was had and the trial court found appellant guilty on three of the five counts of the complaint and entered a judgment permanently disbarring appellant from the practice of law in this state. From this judgment an appeal was granted to the St. Louis Court of Appeals. The court transferred the cause here on the theory that appellate jurisdiction was in this court. The rules of this court provide that in cases of this nature, where disbarment is instituted in the circuit court, "appeals shall be allowed to this court as in civil cases". See subdivision eleven of rule 36. See, also, sec. 11714, R.S.Mo.1929, Mo.St.Ann. § 11714, p. 629.

The charges against appellant, upon which he was found guilty, are as follows:

"Count One: That the said W. H. Stumbaugh collected from Crossfield Ice and Bottling Company of Fredericktown, Missouri, in the year of 1934, an account which was due St. Mary's Oil Engine Company of St. Charles, Missouri, the same having been placed with the said W. H. Stumbaugh for collection, and that he failed to remit same to his said above named client, and that he unlawfully embezzled the same, and the amount so collected being $56.40."

"Count Four: That said W. H. Stumbaugh, in the year 1934, drew his check on Security Bank in favor of J. C. Brown of Wentzville, Missouri, for the sum of $7.00; that said check failed to clear for the reason that he, the said W. H. Stumbaugh, had no funds in said bank.

"Count Five: That said W. W. Stumbaugh, in the year 1934, collected a fee on account of the services of the Prosecuting Attorney of Madison County, Missouri, in the case of Missouri vs. A. L. Salmon, and that he willfully, knowingly and unlawfully failed to pay the same to the Treasurer of said County, or to any one else."

Appellant in his brief contends that the evidence introduced was insufficient to sustain charges numbers one, four and five on which he was found guilty. We cannot agree with appellant. His own evidence convicts him on charge one. Appellant admitted that he collected the account, placed the money in a bank to his own credit and appropriated it to his own use by drawing checks against the account. Appellant collected the money in May or June, 1934. From then to the time charges were filed against appellant an attorney at St. Charles, Missouri, who had sent the account to appellant for collection, wrote appellant, without success, a number of letters seeking a settlement. After this proceeding was instituted appellant sent a check, dated May 7, 1935, to the attorney at St. Charles for the amount due. This check was returned marked "Insufficient Funds". The check was paid, however, on the morning of the trial, September 19, 1935, more than a year after appellant had collected the money.

With reference to count four, the evidence showed that appellant appeared before J. C. Brown, a justice of the peace at Wentzville, in behalf of a certain person who was charged with a violation of the traffic laws. The case was dismissed on payment of the costs. Appellant gave the justice a check in the sum of $7.00, which was returned marked "No Funds". The justice of the peace took the matter up with the prosecuting attorney of Madison county and about two months later appellant sent the justice a money order and the check was returned to appellant.

As to count five, the evidence disclosed that appellant represented a Mr. Salmon in a justice court. A trial resulted in a conviction of Salmon, and a fine of $50 and costs was assessed against him. Included in the costs, which amounted to $21.85, was a prosecuting attorney's fee, which, under the law, was payable to the county treasurer. In March, 1934, appellant appealed the case to the circuit court. At the September term, 1934, of the circuit court of Madison county, appellant and the prosecuting attorney reached a settlement to the effect that Salmon was to pay all the costs, the appeal was to be dismissed, the fine stayed and Salmon was to agree not to again violate the law. Appellant collected the costs from Salmon and paid the same to the justice, except the $5.00 assessed as a prosecuting attorney's fee. This he retained under the pretense it was not due the county under such circumstances. He did not return the $5.00 to his client or pay it to the county treasurer. He charged his client a fee which was paid. The conviction of Salmon was not set aside...