State ex rel. Chubb v. Sartorius

• Decision Date: 06 December 1943
• Docket Number: 38528
• Citation: 175 S.W.2d 783,351 Mo. 1227
• Parties: State of Missouri at the Relation of R. Walston Chubb, John S. Marsalek, Albert Chandler, Claude O. Pearcy and Waldo C. Mayfield, being duly appointed, qualified and acting members of the Bar Committee for the Eighth Judicial Circuit of the State of Missouri, Relators, v. Hon. Eugene J. Sartorius, Judge of the Circuit Court for the Eighth Judicial Circuit, State of Missouri
• Court: Missouri Supreme Court

175 S.W.2d 783

351 Mo. 1227

State of Missouri at the Relation of R. Walston Chubb, John S. Marsalek, Albert Chandler, Claude O. Pearcy and Waldo C. Mayfield, being duly appointed, qualified and acting members of the Bar Committee for the Eighth Judicial Circuit of the State of Missouri, Relators, v. Hon. Eugene J. Sartorius, Judge of the Circuit Court for the Eighth Judicial Circuit, State of Missouri

No. 38528

Supreme Court of Missouri

December 6, 1943

Record quashed.

Clifford Greve for relators.

(1) In this certiorari proceeding the relators challenge the power and jurisdiction of respondent to reinstate an attorney, who was suspended in a proceeding instituted by the Circuit Bar Committee, absent notice to the Circuit Bar Committee of the filing of the suspended attorney's petition for reinstatement, thus affording the committee no opportunity to be heard in the matter. Danford v. Super. Ct. of Cal etc., 49 Cal.App. 548, 193 P. 272; In re Morton, 75 Cal.App. 497, 243 P. 32; Ex parte Walls, 73 Ind. 95; 2 Thornton on Attorneys, p. 1339; Nugent v. Met St. Ry. Co., 146 A.D. 775, 131 N.Y.S. 423; In re Harris, 66 N. J. L. 473, 49 A. 728; In re Simpson, 11 N.D. 526, 93 N.W. 918; In re Egan, 24 S.D. 301, 123 N.W. 478; In re Evans, 42 Utah 282 130 P. 218; In re Wendel, 3 N. J. M. 312, 128 A 249. (2) The action of respondent herein in ordering the reinstatement of the attorney without notice to the Circuit Bar Committee and without allowing the committee to be heard in the matter, was arbitrary, in excess of the respondent's jurisdiction and void. Ex parte Walls, 73 Ind. 95; Danford v. Super. Ct. of Cal., etc., 49 Cal.App. 548, 193 P. 272; In re Morton, 75 Cal.App. 497, 243 P. 32; State ex rel. Cave v. Tincher, 258 Mo. 1, 166 S.W. 1028; Dusenberg v. Rudolph, 325 Mo. 881, 30 S.W.2d 94; American Const. Fire Assur. Co. v. O'Malley, 342 Mo. 139, 113 S.W.2d 795; State ex rel. Lambert v. Flynn, 348 Mo. 525, 154 S.W.2d 52; Robinson v. Levy, 217 Mo. 498, 117 S.W. 577; State ex rel. Furstenfeld v. Nixon, 133 S.W. 340; State ex rel. York v. Locker, 266 Mo. 384, 181 S.W. 1001. (3) The order reinstating the attorney was in excess of respondent's jurisdiction and such order was and is void because respondent had before him no legal evidence to justify or support his order and conducted no hearing or trial in the matter and such order of respondent judge reinstating the suspended attorney was based only upon a verified petition filed by the attorney, and an unverified statement by a number of persons recommending such reinstatement. Danford v. Super. Ct. of Cal. etc., 49 Cal.App. 548, 193 P. 272; Ex parte Walls, 73 Ind. 95; Cases cited under Point (6) hereof. (4) In a case such as the present, where power and jurisdiction of an inferior court is questioned, the court will examine the whole record to determine questions of power and abuse of discretion, especially since the case involves this court's rules and the government of its officers. State ex rel. Woodmansee v. Ridge (343 Mo. 702, 123 S.W.2d 20; State ex rel. St. Louis Union Tr. v. Neaf, 346 Mo. 86, 139 S.W.2d 958; Rules for the Gov. of the S.Ct. of Mo. Rule 36, par. 11; Ferris on Extraordinary Legal Remedies, sec. 163, p. 186; In re H S , 165 S.W.2d 300; Williams, Tyrell, on The Source of Authority for Rules of Court Affecting Procedure, Washington U. L. Quarterly XXII, p. 459; Clark v. Austin, 340 Mo. 467, 101 S.W.2d 977; Hoopes v. Bradshaw, 231 Pa. 485, 80 A. 1098; In re Phillips, 17 Cal.2d 55, 109 P.2d 344; In re Cate, 273 P. 617; In re Cate, 270 P. 968; State ex rel. York v. Locker, 266 Mo. 384, 181 S.W. 19; State ex rel. Cave v. Tincher, 258 Mo. 1, 166 S.W. 1028; State ex rel. Crow v. Vallins, 140 Mo. 523, 41 S.W. 887. (5) The usual rule relating to the modification or setting aside of final judgments after the close of the term at which rendered should be applied here, such rule being that a court has no jurisdiction to modify or change any judgment after the close of the term at which the judgment is rendered, without notice to or service upon the opposing party, or the successors thereof. Matthews v. Stephenson, 172 Mo.App. 220, 157 S.W. 887; Weatherford v. Spiritual Christian Union Church, 163 S.W.2d 916; Harrison v. Slaton, 49 S.W.2d 31; Johnson v. Underwood, 324 Mo. 578, 24 S.W.2d 133; Johnson v. Baumhoff, 322 Mo. 1017, 18 S.W.2d 13; Savings Trust Co. v. Skain, 345 Mo. 46, 131 S.W.2d 566; State ex rel. Holtcamp v. Hartmann, 330 Mo. 386, 51 S.W.2d 22; Konta v. St. Louis Stock Exchange, 150 Mo.App. 617; Pulitzer Publishing Co. v. Allen, 134 Mo.App. 229; Smith v. Konder, 85 Mo.App. 33; Caldwell v. Lockridge, 8 Mo. 367. (6) No petition for reinstatement after disbarment or suspension should be considered unless such petition shall contain certain requisites, and set forth the allegations necessary to justify such reinstatement. In re Simpson, 11 N.D. 526, 93 N.W. 918; In re Egan, 52 S.D. 394, 218 N.W. 1; In re Mash, 39 Cal.App. 548, 179 P. 897; In re Cate, 270 Pac. l. c. 970; In re Cate, 94 Cal.App. 370, 271 P. 356; Danford v. Super. Ct., 49 Cal.App. 303, 193 P. 272; Vaughn v. State Bar, 208 Cal. 740, 284 P. 909; In re Lavine, 2 Cal. (2d) 324, 41 P.2d 161; In re Stevens, 197 Cal. 408, 241 P. 88; In re Cate, 77 Cal.App. 495, 247 P. 231; In re LaMotte, 77 Cal. 733, 247 P. 524; In re O'Connell, 64 Cal.App. 673, 222 P. 625; In re Morton, 75 Cal.App. 497, 243 P. 32; In re Sparks, 32 Ohio C. C. 674; In re Wendel, 3 N. J. M. 312, 128 A. 249; In re Harris, 66 N. J. L. 473, 49 A. 728; See, also, the excellent note in 48 A. L. R., at p. 1236 et seq., and the note in 137 A. L. R., at p. 781, wherein are set forth additional cases. (7) In all proceedings for reinstatement of a lawyer, after suspension or disbarment upon petition of the Circuit Bar Commission, the original informants or their successors should be served in the usual manner, and a day certain be set for hearing in open court, so that the interests of the bar and the public may be guarded and protected by open testimony and hearing. Without such procedure, any proceeding for reinstatement would be, as in the case at bar, irregular, ex parte throughout and susceptible of great abuse. Ex parte Walls, 73 Ind. 95; 2 Thornton on Attorneys at Law, p. 1339; Nugent v. Metro. St. Ry. Co., 146 A.D. 775, 131 N.Y.S. 423; In re Harris, 66 N. J. L. 473, 49 A. 728; In re Simpson, 11 N.D. 526, 93 N.W. 918; In re Egan, 24 S.D. 301, 123 N.W. 478; In re Evans, 42 Utah 282, 130 P. 218; In re Wendel, 3 N. J. M. 312, 128 A. 249.

Wm. C. McLaughlin for respondent.

(1) The time for which petitioner Hackman was suspended has elapsed. There is no legal way by which petitioner Hackman could be compelled to serve further time in suspension. The entire question has become moot. (2) The Supreme Court has not seen fit to issue any rules governing the readmission of suspended lawyers to the practice. In the absence of such rules, section 13336, R. S. Mo. 1939, is the law in the case. (3) There is no charge of lack of jurisdiction; there is no conflict of decisions, hence, there is no legal reason for the issuance of the writ herein.

OPINION

Clark, J.

Relators compose the Bar Committee, appointed by this court under our rule 36, for the eighth judicial circuit of Missouri. Respondent is one of the judges of that circuit and presides over division three thereof. On relators' petition we issued our writ of certiorari requiring respondent to bring up the record in a cause lately pending in his court entitled "In the Matter of Alvin F. Hackman". Respondent has made return and the cause is before us on respondent's motion to quash our writ and relators' motion to quash the record.

The record discloses that prior to June, 1941, Alvin F. Hackman was a licensed attorney; that, after a trial at the June term, 1941, on proceedings instituted and prosecuted by the Bar Committee, Hackman's license as attorney was suspended for a period of two years from June 12, 1941, the trial being conducted and judgment rendered by a predecessor of respondent as judge of division three of said court. At a subsequent term, on August 31, 1942, Hackman filed an application for reinstatement as a member of the bar; the respondent took the application under advisement and, on October 5, 1942, entered an order reciting "the court having seen and examined and duly considered the verified application . . . and being sufficiently advised thereof doth order that said application for reinstatement be and the same is hereby sustained and that said Alvin F. Hackman be and he is hereby reinstated as an attorney and counselor at law in the State of Missouri"; within four days thereafter and at the same term of court the Bar Committee filed a motion to set aside the order of reinstatement and for a rehearing, which motion was overruled by respondent on February 24, 1943.

From the motions of the respective parties we condense the issues in this court as follows: (1) The time of Hackman's suspension having expired and he being now entitled to practice law without a reinstatement, has the validity of his reinstatement become a moot question? (2) Was the order granting reinstatement, without a trial and without notice to the Bar Committee, in excess of respondent's judicial discretion?

In a case such as this where the issue was a live one at the time our writ issued, and the question as to whether or not it has become moot arises only because of the lapse of time consumed in effecting its final submission to this court, we have the undoubted discretion to determine whether or not we will decide the case on the merits. [State ex rel. v Trimble, 254 Mo. 542, 163 S.W. 860; State ex rel. v. Duncan, 333 Mo. 673, 63 S.W.2d 135; State ex rel. Donnell v. Searcy, 348 Mo. 1052, 152 S.W.2d 8.] The instant case...