State ex rel. Indianapolis Bar Ass'n v. Fletcher Trust Co.

• Decision Date: 13 January 1937
• Docket Number: 26639.
• Citation: 5 N.E.2d 538,211 Ind. 27
• Parties: STATE et rel. INDIANAPOLIS BAR ASS'N v. FLETCHER TRUST CO.
• Court: Indiana Supreme Court

5 N.E.2d 538

211 Ind. 27

STATE et rel. INDIANAPOLIS BAR ASS'N v. FLETCHER TRUST CO.

No. 26639.

Supreme Court of Indiana

January 13, 1937

Taylor E. Groninger, Milton N. Simon, Maurice L. Mendenhall, Herman W. Kothe, Henry M. Dowling, Alan W. Boyd, and Howard P Travis, all of Indianapolis, for relator.

Dailey O'Neal, Dailey & Efroymson, of Indianapolis, for respondent.

HUGHES Judge.

The relator, by its committee on the unauthorized practice of the law, charges that the respondent, Fletcher Trust Company, is a corporation with its principal place of business in the city of Indianapolis, and organized under the laws of the State of Indiana relating to trust companies for the purpose of engaging in general trust company business; that being so organized, said trust company is subject to the laws of said State and has no power, authority, or rights except such as are conferred upon it by said laws of Indiana; that said trust company has no power, authority, or right whatsoever to engage in the practice of the law or to conduct a law business.

It is charged that Donald S. Morris, J. F. Beals and Richard F. Mills are attorneys duly admitted to the Bar of Indiana, and members of this court; that the respondent trust company has for many years by the use of the names and by and through said Morris, Beals, and Mills, its employees, engaged in the practice of law in the county of Marion, State of Indiana, and has for a long time continually and willfully violated the laws of the State regulating the practice of the law and has unlawfully assumed and usurped franchises and privileges not granted to it by the common or statutory laws of the State of Indiana, to wit, to practice law and to do a law business. It is charged that the trust company is engaged in the city of Indianapolis and elsewhere in Indiana in the business of advertising for and soliciting through salaried employees the business of drafting and writing wills for its patrons and customers, and in actually drafting and writing such wills, for a valuable consideration, in which wills it is named as trustee or executor, or both; and also in the business of giving legal advice and counsel to its patrons and customers for a valuable consideration about the execution of wills, the legal effect of different clauses, the powers and duties of trustees. It is further charged that the respondent prepares and drafts, for a valuable consideration, 'living trust agreements' and gives advice relative to all legal phases thereof; that it performs and has performed legal services by its employees, incident to the probating of wills, administering and settling of estates, petitioning for appointment of trustees and guardianships and trusts, filing of petitions for investments and petitions to sell property in estates and guardianships. It is charged that through its salaried attorneys it institutes suits to foreclose mortgages; that it prepares and drafts contracts, leases, deeds, mortgages, and trust agreements for a valuable consideration. The relator asks for an order of this court requiring respondent to show cause, if any it has, why it should not be punished for contempt of this court for the offenses set out and that it be enjoined and restrained from engaging in the practice of law in the State of Indiana.

The respondent, Fletcher Trust Company, waived the issuance and service upon it of a rule to show cause and filed a verified response denying each of the charges contained in the information; and also denied under oath that there was any intention on its part to commit any act in violation of any rule or order of this court, and that there was no intention on its part to engage in any act forbidden by law. It also admits in its verified response that it has no authority to practice law and denies that it intends to do so.

We think it clearly appears that the information attempts to charge a criminal contempt as recently discussed in the cases of Denny v. State (1932) 203 Ind. 682, 182 N.E. 313, and Brown v. Brown (1933) 205 Ind. 664, 187 N.E. 836.

Since the information charges a criminal contempt, the respondent contends that its response under oath denying each of the facts charged in the information as constituting a contempt and that there was no intention on its part to commit any act in violation of any rule or order of this court is sufficient to entitle the respondent to be discharged.

The relators contend that the statute of this State allowing 'purging' by affidavit of the contemnor has no application to contempts against the authority of the Supreme Court and hence respondent's return is not able to exonerate it. The relators further contend that the inherent power of the Supreme Court to punish respondent for contempt and to enjoin it from further practice of law cannot be limited or hampered by any act of the Legislature and that the contempt statutes of Indiana have no necessary application to the present case.

The statute relative to contempts of court was enacted in 1879. Acts of 1879, Special Session, c. 35, p. 112, as amended, Burns' 1933, §§ 3-901 to 3-910, sections 874-887, Baldwin's Ind.St.1934. Section 10, as amended (Burns' Ann.St.1933, § 3-910), provided that the provisions of the act shall apply to all proceedings for contempt in all courts of record in this State except the Supreme Court. So it is clearly seen, as contended for by relator, that the statute does not apply in the instant case and has no necessary application thereto. We also agree with relator that the Supreme Court has the inherent power to punish for a contempt of this court. As said in the case of Little v. State (1883) 90 Ind. 338, 46 Am.Rep. 224: 'There is no doubt that the power to punish for contempt is an inherent one, for, independent of legislation, it exists, and has always existed, in the courts of England and America. It is, in truth, impossible to conceive a superior court as existing without such a power. The Legislature may regulate the exercise of this power-may prescribe rules and practice and procedure, but it can neither take it away nor materially impair it.'

Speaking of contempt cases, Blackstone says: 'The process of attachment, for these and like contempts, must necessarily be as ancient as the laws themselves. For laws, without a competent authority to secure their administration from disobedience and contempt would be vain and nugatory. A power, therefore in the supreme courts of justice to suppress such contempts, by an immediate attachment of the offender, results from the first principles of judicial establishments, and must be an inseparable attendant upon every superior tribunal. Accordingly we find it actually exercised as early as the annals of our law extend.' 2 Jones' Blackstone, 2503; Holman v. State, 105 Ind. 513, 5 N.E. 556; Cheadle v. State, 110 Ind. 301, 11 N.E. 426, 59 Am.Rep. 199; Hawkins v. State, 125 Ind. 570, 25 N.E. 818; State v. Shumaker, 200 Ind. 623, 157 N.E. 769, 162 N.E. 441, 163 N.E. 272, 58 A.L.R. 954.

Conceding that the Act of 1879, supra, does not apply in the instant case, still we are of the opinion that where one has been charged with constructive or indirect criminal contempt, denies under oath the facts charged in the information and that he had no intent to show any disrespect to the court or to defy its authority, he is entitled to a discharge. This has been the law since and before the time of Blackstone. He said: 'If the party can clear himself upon oath, he is discharged; but, if perjured, may be prosecuted for perjury.' 2 Jones' Blackstone, 2506. In the case of The King v. Sims, 12 Mod. 511, it is said: 'If one brought in, in contempt, deny all upon oath, he is of course discharged of the contempt; but if he has forsworn himself, he may be prosecuted for perjury.' And in the case of The King v. Vaughan, 2 Doug. 516, the court said: 'Lord Mansfield stated the practice of the court to be, that, if the defendant by his affidavit, fully denies the charge on which the rule of attachment was granted, that is sufficient; the weight of the evidence, or the credibility of what is sworn, is never considered; but if the defendant is hardy enough to swear falsely, he is left to be punished by indictment.'

The case of State v. Earl (1872) 41 Ind. 464, is one of the early cases in this State upon the subject of contempt. An order was made by the Supreme Court requiring the defendant to appear and show cause why he should not be attached for alleged contempt of this court. The Attorney General was directed to take charge of the case on behalf of the State. The defendant filed an affidavit fully denying all the allegations contained in the rule. The defendant moved the court to discharge the rule because he had fully purged himself of the alleged contempt. The court said: 'We have examined the authorities, and are satisfied that in all cases of proceedings for alleged constructive contempts, except, perhaps, when they are to enforce a civil remedy, if the party charged fully answers all the charges against him, he shall be discharged, as to the attachment, and that the court cannot, after that, hear evidence to impeach or contradict him.'

In the case of Stewart v. State (1891) 140 Ind. 7, 39 N.E 508, 510, it is stated: 'It always has been the law in this state, even prior to the enactment of the statute referred to, in constructive or indirect contempts, if the defendant by his sworn or verified answer fully denies the charge on which the rule for an attachment was granted, that is sufficient. The weight of the evidence, or the credibility of what is sworn, is never considered; but, if the defendant is hardly enough to swear falsely, he is left to be punished by indictment. In chancery, it is said, they proceed...