State ex rel. Morton v. Cave
| Decision Date | 09 May 1949 |
| Docket Number | 40591 |
| Citation | 220 S.W.2d 45,359 Mo. 72 |
| Parties | State of Missouri, at the Relation of William M. Morton, John C. Landis, III, Charles F. Strop, Jr., and Francis A. Smith, Members of the Bar Committee of the Sixth Judicial Circuit of the State of Missouri, Relators, v. Nick T. Cave, Ewing C. Bland and Samuel A. Dew, Judges of the Kansas City Court of Appeals, Respondents |
| Court | Missouri Supreme Court |
Judgment of Court of Appeals on costs quashed and new judgment on costs ordered entered.
In a disbarment proceeding in the Kansas City Court of Appeals an attorney was found guilty of only one out of eight charges, and was reprimanded and fined. All other costs were assessed against the Bar Committee. Said Committee failed to file a motion for rehearing as required by Rule 2.06 before applying for a writ of certiorari, so the Supreme Court will not hear the case on the merits. But the Court of Appeals overruled the motion of the Committee to retax the costs, and the Supreme Court reduces the allowance of the Special Commissioner and taxes $ 1000 in costs against the attorney.
Donald H. Latshaw and Charles E. McCoy for relators.
(1) When a case is transferred to the Supreme Court, by its order upon application thereto for certiorari to review the decision of the Court of Appeals, the case in its entirety should be heard upon its merits and considered as an original appeal to the Supreme Court of Missouri. Constitution, 1945, Art. V, Sec. 10; Supreme Court Rule 2.06; Asel v. Order of United Commercial Travelers, 197 S.W.2d 639, 355 Mo. 658; State ex rel. Northwestern Mut. Life Ins. Co., 189 S.W.2d 542, 354 Mo. 391; Allbright v. Louisiana & Mo. River Railroad Co., 195 S.W.2d 648, 355 Mo. 211; State ex rel. Interstate Oil Co. v. Bland, 190 S.W.2d 227, 354 Mo. 622; Wood v. Wagner Electric Corp., 197 S.W.2d 647, 355 Mo. 670; In re Connor, 207 S.W.2d 492; State ex rel. Chubb v. Sartorius, 175 S.W.2d 783, 351 Mo. 1227; In re Duren, 200 S.W.2d 343, 355 Mo. 1222; State ex rel. Booker v. Bland, 197 S.W.2d 967, 355 Mo. 768; Vanderhoff v. Lawrence, 206 S.W.2d 569; State ex rel. Stewart v. Blair, 208 S.W.2d 268; State ex rel. Kansas City So. R.R. Co. v. Shain, 105 S.W.2d 915; State ex rel. Duraflor Products Co. v. Pearcy, 29 S.W.2d 83; State ex rel. Nolen v. Nelson, 275 S.W. 927; State ex rel. Brigance v. Smith, 135 S.W.2d 355. (2) This action is for the purpose of examining into the conduct of an officer of this court, wherein this court shall determine whether or not the accused attorney-at-law herein shall be deemed guilty of acts of misconduct, whereby, for the protection of the public and those charged with the administration of justice, he should no longer be entrusted with the duties and responsibilities belonging to the office of an attorney. In re Richards, 63 S.W.2d 672, 333 Mo. 907; In re Sparrow, 90 S.W.2d 401, 338 Mo. 203; In re Lacy, 112 S.W.2d 594, 234 Mo.App. 71; State ex rel. Chubb v. Sartorius, 175 S.W.2d 783, 351 Mo. 1227; Clark v. Reardon, 104 S.W.2d 407, 231 Mo.App. 666; In re Keenan, 193 N.E. 65, 96 A.L.R. 679; 5 Am. Jur., Sec. 249, p. 410; 7 C.J.S., sec. 18, p. 728. (3) The court should review the evidence and the record in this proceeding, de novo, and ascertain for itself whether or not the attorney involved herein is guilty or innocent as charged in the information, irrespective of the report, findings of fact, conclusions of law, and recommendation of the Special Commissioner. State ex inf. v. Arkansas Lumber Co., 169 S.W. 145, 260 Mo. 212; State ex inf. v. Kansas City College of Medicine & Surgery, 285 S.W. 980, 315 Mo. 101; In re Disbarment Proceedings Against John J. Parkinson, Sr., 128 S.W.2d 1023, 344 Mo. 716; State ex rel. Huse v. Hayden, 163 S.W.2d 946, 340 Mo. 982; Supreme Court Rule 4.47. (4) The Supreme Court and Courts of Appeals of Missouri have prior hereto taxed the costs of disciplinary proceedings against accused attorneys, as part of their punishment. In re Davis, 166 S.W. 341; In re Conrad, 340 Mo. 582, 105 S.W.2d 1; In re Noell, 96 S.W.2d 213; In re Gallant, 231 Mo.App. 150, 95 S.W.2d 1249; In re Tall, 339 Mo. 11, 93 S.W.2d 922; In re Farris, 340 Mo. 1206, 105 S.W.2d 921.
Chas. H. Mayer for respondents.
(1) Because there was no motion for rehearing and no motion to transfer the case to the Supreme Court filed in the Court of Appeals, the writ should be quashed. Supreme Court Rule 2.06; 2 Carr, Missouri Civil Procedure, sec. 1221, p. 291. (2) The court cannot consider this case on the merits without flagrantly violating the court's own rules. Supreme Court Rules 2.06, 1.19; 2 Carr, Missouri Civil Procedure, sec. 1221, p. 291. (3) The defendant Mason being acquitted on seven of the eight counts in the information and reprimanded on the remaining count, the Court of Appeals did not abuse its discretion in assessing $ 250 of the costs against him and the remainder of the costs against the Bar Committee. Supreme Court Rule 5.10; Sec. 13334, R.S. 1939.
McCullen, Special Judge. Tipton, Clark and Ellison, JJ., concur; Leedy, C.J., concurs in separate concurring opinion; Hyde, J., concurs in the holding that the merits should not be considered, but he believes all of the costs should be taxed against the respondent-attorney; Douglas, J., dissents in opinion filed; Conkling, J., not sitting.
McCULLEN
Pursuant to a writ of certiorari issued by this court, respondents as Judges of the Kansas City Court of Appeals transferred and certified to this court the record in a disbarment proceeding which originated in said court. An information was filed in said Court of Appeals by the Sixth Judicial Circuit Bar Committee, also referred to as informants, charging Richard W. Mason, a licensed and practicing attorney at law, with professional misconduct. Said court appointed Honorable Oak Hunter, a member of the Missouri Bar, as Special Commissioner to hear evidence and to report the same to the court together with his findings of fact and conclusions of law. The Commissioner, after hearing evidence presented by the parties, made a comprehensive report to the court in which he concluded that the evidence as to the misconduct of the accused attorney, referred to therein as respondent, was insufficient to justify or require any disciplinary action by the court and recommended the dismissal of the charges that had been filed against the attorney.
Informants filed exceptions to the Commissioner's Report and thereafter the cause was argued and submitted to the court by the parties. Later an opinion was handed down by the Court of Appeals in which all of the Commissioner's Report, except as to count 8 of the information, was approved. Under count 8 the court found the respondent attorney guilty and ordered that he be reprimanded and that he pay the sum of $ 250.00 to be applied upon the costs. See In re Mason, 203 S.W.2d 750.
On the same day that the opinion was adopted, June 16, 1947, the court made a separate order allowing the following items of costs:
The court on said date also rendered a separate judgment against the respondent attorney for costs in the sum of $ 250.00 and reprimanded him for unprofessional conduct. In said judgment the court assessed the remainder of the costs in the sum of $ 1361.04 against informants.
Informants did not file a motion for rehearing, but on June 27, 1947, filed a motion which was designated "Motion to Retax Costs or Certify Question to Supreme Court of Missouri." The motion prayed for an order to reduce the Commissioner's allowance and to retax all the costs against the respondent attorney and further prayed that "in the event the court declines so to do, then that the question of retaxing costs in this case be forthwith certified to the Supreme Court."
On June 30, 1947, the motion to retax costs was overruled by the court and thereafter informants filed their petition for certiorari in the Supreme Court alleging, in their suggestions in support thereof, that the question presented is "whether or not the costs of this disbarment proceeding may be assessed against the Bar Committee of the Sixth Judicial Circuit of the State of Missouri, Informant herein, while acting in good faith in performance of its duty . . . ," in view of the finding of the court adjudging the accused attorney guilty of unprofessional conduct. The petition of informants-relators for said writ of certiorari alleged that the "question aforesaid is of transcendent general public interest and importance," and prayed this court to require the Court of Appeals to certify to this court the record of the case and that this court quash said judgment. The "question aforesaid," above referred to, meant, of course, the question of costs.
Suggestions filed by informants in support of their petition for the writ of certiorari were devoted solely to the matter of having the costs retaxed and concluded as follows "The calculated importance of the question of costs should not be measured by the possible effect upon the accused attorney, but as a question of prime and vital importance to the general public, inevitably recurrent." All the records of the proceedings in the Court of Appeals were duly certified to this court along with the briefs that had been filed by the parties in said court, in which briefs the whole case was discussed. Prior to the first hearing in this court, informants did not file a new brief here but argued the whole case as well as the motion to retax costs. No argument on behalf of respondent judges was made at said first hearing in this...
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