State v. Finley

• Decision Date: 13 July 1892
• Citation: 11 So. 500,30 Fla. 302
• Parties: STATE ex rel. FOWLER v. FINLEY, circuit Judge.
• Court: Florida Supreme Court

11 So. 500

30 Fla. 302

STATE ex rel. FOWLER v. FINLEY, circuit Judge.

Florida Supreme Court

July 13, 1892

Original proceeding in mandamus by the state of Florida on relation of George P. Fowler, asking for a peremptory writ to require Jesse J. Finley, as judge of the circuit court for the fifth judicial circuit, to vacate an order disbarring relator from practicing as an attorney at law. A demurrer to the return to the alternative writ was sustained, with leave to amend.

Syllabus by the Court

SYLLABUS

1. Mandamus is the appropriate remedy, upon a proper case, to restore an attorney at law to his rights as such, when disbarred by the judgment of a circuit court from practicing his profession; but in such proceedings it is essential that the alternative writ, which takes the place of a declaration at law, should show a clear prima facie case in favor of the relator.

2. A demurrer to the return to an alternative writ will reach said writ if defective, and bring it before the court for consideration.

3. The remedy by mandamus is proper to restore an attorney who has been disbarred from practicing his profession, not only where the disbarring court has exceeded its authority or proceeded irregularly, but also where it has manifestly decided erroneously on the evidence; and, where it is made to appear that the judgment of disbarment has been rendered by a court of competent jurisdiction, it is incumbent upon the relator to allege in the alternative writ the facts which show that the court exceeded its authority, proceeded irregularly, or decided erroneously on the evidence. An allegation in an alternative writ in such a case that the record, evidence and proceedings in disbarring relator are wholly and entirely insufficient to authorize his disbarment, and that such judgment is totally null and void, is the statement of a legal conclusion, and is insufficient in this: that it fails to show any facts which render the judgment of disbarment null and void.

4. The charges upon which proceedings are based to disbar an attorney should be specific and particular, so that he may be apprised of the precise nature of the accusation against him. Such proceedings are summary in their nature, but not arbitrary or despotic, and the court acts in the exercise of a sound discretion and according to law.

5. While it is competent for the appellate court to review, in a proceeding by mandamus, the evidence upon which a circuit judge acted in disbarring an attorney, it cannot determine the sufficiency of the evidence to sustain such action unless it is brought there; and where the relator alleges, as a ground for relief, the erroneous decision of the disbarring court upon the evidence, it is essential that he should show it, in order that the appellate court may determine its sufficiency.

6. Where the charges against the attorney in disbarment proceedings are for misconduct in his office as attorney or for acts connected with the practice of his profession, and which show him to be an unfit person to exercise the functions of an attorney in the administration of law although such conduct or acts may amount to an indictable offense, the court may proceed to disbar his without regard to any previous prosecution for said offense. The court does not proceed in such cases upon the theory of punishing the person, but to investigate the question of professional delinquency, to determine the fitness of the attorney to be intrusted with the conduct of causes and the administration of public justice.

COUNSEL

Miller & Spencer, for relator.

OPINION

The other facts fully appear in the following statement by MABRY J.: This is an original proceeding by mandamus instituted by the relator, George P. Fowler, asking for a peremptory writ to require the Honorable Jesse J. Finley, judge of the circuit court for the fifth judicial circuit of the state, to vacate and set aside an order made by him as such judge on the 24th day of February, A. D. 1892, disbarring said relator from the office and privileges of an attorney at law, and to allow him to exercise all the duties and privileges as an attorney at law and solicitor in chancery. The alternative writ alleges that 'on the 7th day of November, A. D. 1872, the said George P. Fowler was duly admitted as a practicing lawyer, attorney, and counselor in the circuit court of the state of Florida; that thereafter he was admitted also to practice in the supreme court of the state of Forida and in the United States circuit and district courts for the northern district of Florida; that since his said admission to the said courts he has been in the actual practice of his profession as an attorney and counselor in all of the said courts, and has always demeaned himself honestly and properly in his practice and proceedings before each and every of the said courts; that he continued so to practice until the 2d day of March, 1892, when an order disbarring him was filed in the office of the clerk of the circuit court of Putnam county, Fla., which order is in the following words and figures, to wit:

"In re George P. Fowler. Rule to show cause,' etc. 'Having examined and considered the evidence filed herein, the court finds the respondent, George P. Fowler, guilty of abstracting the subpoena in chancery in the case of Andrew I. Wood vs. Benjamin Roberts and wife, then pending in the circuit court of Putnam county. While the court is of the opinion that the omission of the words 'of Putnam' might not have vitiated the decree of the court in the case of Andrew I. Wood vs. Hennis Peterman et al., then pending in the circuit court of Putnam county, the court finds from the evidence that the respondent, the said George P. Fowler, did interline in said decree the words 'of Putnam,' after the decree was signed by the chancellor, and after the said decree had been partially recorded in the chancery order book of the Putnam county circuit court; and upon the said findings it is considered and adjudged that the said George P. Fowler be, and he is hereby, disbarred, and is hereby forbidden to exercise the functions and privileges of an attorney and counselor at law and solicitor in chancery, in any of the courts in this state. At chambers, February 24, 1892. J. J. FINLEY, Judge.'

'That said order was based upon charges made against your petitioner by one D. M. Kirby, who made also other charges against your petitioner, which are of no importance, as the court did not sustain them; that, of the two charges sustained by the court, no formal or legal charge was ever made against him, sufficient to put him upon answer, but that nevertheless this petitioner did fully answer, denying the truth of both of the said charges, absolutely and unequivocally; that the charge of abstracting the subpoena in chancery in the case of Wood v. Roberts had been brought against him in a criminal proceeding before the Honorable J. E. Baldwin, county judge of Putnam county, Fla., on the 24th day of April, 1890, who heard all the evidence of each of the witnesses who testified in this proceeding, and in addition heard the testimony of B. F. Roberts, who is since dead; and the said county judge thereupon discharged him, and the complaining witnesses asked the dismissal of the complaint against him, which was thereupon had, and he was acquitted of the said charges, and no further proceedings were ever taken or had upon the said charge until the 26th day of March, 1891, when D. M. Kirby's complaint was filed by the Honorable J. J. Finley.

'That the other charge upon which the court in its order bases his disbarral is the insertion of the words 'of Putnam,' in a final decree of the court in the case of Wood v. Peterman.

'That your petitioner in his answer to said rule denied, and still denies, having made such alteration or interlineation in said decree after it was signed by the judge, and says that there was no evidence before the court to sustain the charge.

'Your petitioner humbly submits to the court that if both of said charges sustained by the judge are admitted to be true, he has been acquitted of the charge of abstrating the record, upon a full hearing, and that he ought not to be disbarred upon such a charge until after conviction on a criminal prosecution, and opportunity for defense. As to the charge of the interlineation of the two words 'of Putnam,' in the description of land in a final decree, your petitioner submits that, if such an alteration was made, it was an immaterial insertion of words, which were meant by the judge to be in the decree, which did not affect the decree, and furnish in law no valid or sufficient reason for this disbarral.

'Your petitioner alleges that the record and evidence and proceedings in disbarring your petitioner from practicing as an attorney and counselor were wholly and entirely insufficient to authorize the said judge of the circuit court of the fifth judicial circuit. Hon. J. J. Finley, to authorize his disbarral; and says that such order is totally null and void, and that he should be restored to his office as an attorney; that he has made application to the said judge to restore him to his right to practice law, and to his office as attorney and counselor at law, which the said judge hath refused, and doth still refuse, to do; by means whereof the said petitioner, George P. Fowler, is prevented from entering upon and exercising the duties of his said office of attorney and counselor at law, and is kept out of the said office and right to practice, to which he is justly and lawfully entitled, and of which he has been deprived illegally, and without due process of law.'

To the foregoing alternative writ the respondent makes the following return: 'And now comes the said respondent,...