State Bar of Mich. v. Ingham Circuit Judge

• Decision Date: 29 December 1943
• Docket Number: No. 447.,447.
• Citation: 307 Mich. 393,12 N.W.2d 408
• Parties: STATE BAR OF MICHIGAN v. INGHAM CIRCUIT JUDGE et al.
• Court: Michigan Supreme Court

307 Mich. 393

12 N.W.2d 408

STATE BAR OF MICHIGAN

v.INGHAM CIRCUIT JUDGE et al.

No. 447.

Supreme Court of Michigan.

Dec. 29, 1943.

Proceeding by the State Bar of Michigan for a writ of prohibition restraining Harold H. Emmons from continuing with a certain chancery suit instituted by him and prohibiting Leland W. Carr, a circuit judge for Ingham County, Michigan, from taking any further proceedings under Emmons' bill of complaint and requiring him to enter an order vacating a restrauning order.

Writ of prohibiting granted.

CHANDLER, STARR, and BUSHNELL, JJ., dissenting.

Before the Entire Bench.

George E. Brand, of Detroit, for petitioner.

Ernest C. Smith, of Lansing (Abram W. Sempliner, Hugh Francis, and LawrenceRothenberg, all of Detroit, of counsel), for respondent Emmons.

Paul Weadock, of Detroit, for Detroit Bar Ass'n (Thomas H. Adams, of Detroit, of counsel), amici curiae.

SHARPE, Justice.

Petitioner, the State Bar of Michigan, filed a petition for a writ of prohibition to restrain Harold H. Emmons, a practicing attorney, from continuing with a certain chancery suit instituted by him in Ingham county and prohibiting Leland W. Carr, a circuit judge in said county, from taking any further proceedings under Emmons' bill of complaint and requiring him to enter an order vacating a restraining order issued by him on May 3, 1943.

A brief history of the alleged facts may prove helpful in determining the legal issues involved. George H. Cummings died on June 7, 1920, leaving a will. Harold H. Emmons and Nellie G. Rockafellow were appointed executors of the estate in July 1920. An account of these executors was filed and allowed in December 1924. Nellie G. Rockafellow died in January 1925. Thereafter, Harold H. Emmons continued to administer the Cummings estate as the sole surviving executor. In August 1930, Emmons organized and incorporated a Michigan nonprofit corporation under the name of George H. Cummings Corporation, but this name was later changed to George H. Cummings Foundation and will be hereafter referred to as the Foundation.

This corporation was formed in contemplation of transferring to it the assets of the Cummings trust for crippled children. The Foundation remained inactive and no assets of the estate were transferred to it until August 1935. In June 1935, Emmons filed a final account as ‘sole surviving executor and trustee.’ The order on this petition was entered August 7, 1935, and recited that the final account of Emmons was allowed and he was ‘discharged as such executor and trustee.’ The order further approved Emmons' designation of the George H. Cummings Foundation as the recipient of the fund.

On February 11, 1936, Emmons filed in the probate court a supplemental account covering March 31, 1928, to April 30, 1935. Thereafter, the court appointed Paul H. King as guardian ad litem of persons unborn, unascertained or legally incompetent to act in their own behalf in connection with the said trusts. On May 26, 1936, Paul H. King, as guardian, filed a bill of complaint against Emmons and the Foundation. This case was eventually appealed to the supreme court and we held (King v. Emmons, 283 Mich. 116, 277 N.W. 851, 115 A.L.R. 564) that the prosecuting attorney of Wayne county was the proper person to maintain such a suit. The litigation was continued by the prosecuting attorney and on June 9, 1942, a stipulation was filed discontinuing the cause.

In April 1940, the matter of Emmons' conduct in connection with the Cummings estate became the subject of an investigation by the grievance committee of the State Bar, third judicial circuit. On or about September 10, 1940, a formal written complaint against Emmons was filed with the committee by its secretary. The complaint alleged that Emmons had been guilty of professional misconduct and breach of his professional duty toward his client, George H. Cummings and his estate, and by his conduct had violated the canons of professional ethics adopted by the State Bar.

In November 1940, Emmons filed with the grievance committee his sworn answer to the charges made against him and moved for a dismissal of the proceedings. On December 7, 1942, the hearing on the complaint before the grievance committee was commenced. Emmons appeared in person and by his attorneys, testimony was taken and at its conclusion, Emmons again filed a motion to dismiss. On or about February 10, 1943, Emmons filed a petition to take further testimony and on February 20, 1943, the commissioners of the third judicial circuit directed the grievance committee to take the additional testimony. Such testimony was taken on March 18 and 29, 1943. On May 3, 1943, before the report of the grievance committee was delivered to the general chairman of grievances for inspection by the commissioners of the third judicial circuit, Emmons filed in the circuit court of Ingham county his bill of complaint against the State Bar of Michigan praying injunctive and declaratory relief against the State Bar of Michigan and for a decree that:

(a) The State Bar has no jurisdiction of the matters herein presented because they grow out of a private business enterprise and not out of any matters of legal business to be handled or administered by an attorney at law.

(b) The matters presented to the State Bar involve a private business enterprise of respondent, of which an accounting has been had and the proceedings therefor finally dismissed with prejudice by the court, whose decree is res adjudicata.

(c) All matters upon which the grievance complaint was founded are res adjudicata by reason of court decrees.

(d) The State Bar has no jurisdiction of the matters complained of because they were not such as were or could have been handled, operated or performed by an executor or testamentary trustee under the liquidating processes of the probate court, but, because of insolvency, could only be handled by one conducting a going business concern.

(e) Neither the State Bar nor its agencies or instrumentalities have the right or jurisdiction to pass upon disputes arising out of questions of legal interpretation, in a proceeding to discipline an attorney at law-but the same required the consideration and determination of a court of competent jurisdiction.

(f) The State Bar has no jurisdiction because all of the transactions complained of occurred prior to December 2, 1935.

(g) Equity and good conscience require that all of the matters involved be considered, in law and in fact, adjudicated and determined and not subject to collateral attack by the State Bar or any other person.

Upon the filing of the bill of complaint, the following order was entered by the trial court:

‘On reading and filing the bill of complaint herein, it is ordered that the defendant, The State Bar of Michigan, show cause on Friday, May 14, 1943, at the opening of court on that day or as soon thereafter as counsel can be heard, why the prayer of the bill of complaint, for a temporary injunction, should not be granted as prayed for.

‘It is further ordered that until the further order of this court, the said defendant, The State Bar of Michigan, its agents, representatives, attorneys and committees refrain and desist from taking any action upon the complaint now pending against the plaintiff, Harold H. Emmons, or as to any of the matters set forth therein.'

The State Bar did not file an answer or contest the issues raised by the bill of complaint filed in the Ingham circuit court, but did file the instant petition in the supreme court for a writ of prohibition and mandamus and asked for the following relief: that Emmons be prohibited from continuing with his chancery suit and that the circuit judge of Ingham county be required to enter an order vacating the restraining order of May 3, 1943, and dismissing the suit.

The first issue involved in this cause is the right of petitioner to a writ of prohibition. In Scott v. Chambers, 62 Mich. 532, 29 N.W. 94, we expressed the rule that when an inferior court exceeds its jurisdiction, it is a proper case for summary interference by mandamus or prohibition. In Baskin v. Wayne Circuit Judge, 236 Mich. 15, 209 N.W. 925, we held that a writ of prohibition is the appropriate remedy to determine which of two circuit courts asserting exclusive jurisdiction over a divorce suit has the right to proceed.

In Nichols v. Judge of Superior Court of Grand Rapids, 130 Mich. 187, 89 N.W. 691, we said:

‘The writ of prohibition is the appropriate remedy only where the court is acting entirely without jurisdiction or in clear excess of its jurisdiction. It is not applicable where the party has a complete and adequate remedy in some other and more ordinary form. * * * The principle is thus stated:

“The broad governing principle is that a prohibition lies where a subordinate tribunal has no jurisdiction at all to deal with the cause or matter before it, or where, in the progress of a cause within its jurisdiction, some point arises for decision which the inferior court is incompetent to determine. But a prohibition will not lie where the inferior court has jurisdiction to deal with the cause and with all matters necessarily arising therein, however erroneous its decisions may be upon any point.' Heard Shortt, Extr.Rem. 436.' See, also, Warnshuis v. State Board of Registration in Medicine, 285 Mich. 699, 281 N.W. 410.

The propriety of the issuance of the writ largely depends upon whether the circuit court of Ingham county acted without jurisdiction or in excess of its jurisdiction in assuming that the bill of complaint filed by Emmons presented a proper subject for declaratory judgment proceedings. The bill of complaint filed in the circuit court does not seek to have that court conduct disbarment proceedings, but does seek a finding of facts and a declaration of their validity which could materially affect disbarment.

In speaking of the declaratory judgment law (3 Comp.Laws 1929, § 13903 et seq.), we said in ...