State v. Fort

• Decision Date: 23 December 1903
• Parties: STATE ex rel. LENTZ v. FORT, Judge.
• Court: Missouri Supreme Court

77 S.W. 741

178 Mo. 518

STATE ex rel. LENTZ v. FORT, Judge.

Supreme Court of Missouri.

December 23, 1903.

DISBARMENT PROCEEDINGS — BIAS OF JUDGE — CHANGE OF VENUE — REFUSAL — PROHIBITION — JURISDICTION — SUPREME COURT — ORDER OF COURT — POWER OF JUDGE — STATUTE.

1. After a term of court has passed, it is beyond the power of the court at any subsequent term to set aside its prior order made; hence where a judge at the February term made an order in disbarment proceedings, calling in another judge on account of his own disqualification, his act, at the June term following, revoking the order, leaves the first order to be considered as if the subsequent order had not been made.

2. Under Rev. St. 1899, § 1678, providing that when any judge shall for any cause be unable to hold court he may call in the judge of another circuit, and section 1679, providing that whenever the judge for any cause shall be unable to hold court, or "if the judge is interested," or "for any reason cannot properly proceed in the cause," a member of the bar may be chosen or elected to act, as well as under the court's inherent power, a circuit judge is authorized to call in another judge to preside in disbarment proceedings in which he is disqualified to act from prejudice.

3. Prohibition proceedings will lie in the Supreme Court to prevent a circuit judge from taking further action in a disbarment proceeding wherein he had overruled an order made at a previous term calling in another judge to try the case because of prejudice of the sitting judge, though there is no statute expressly authorizing change of venue in disbarment proceedings, and no appellate jurisdiction is conferred on the Supreme Court in such cases.

In Banc. Prohibition by the state, on the relation of Erastus R. Lentz, against James L. Fort, judge of the Butler county circuit court. Granted.

E. R. Lentz, for relator. Jas. L. Fort, for respondent.

ROBINSON, C. J.

This is a proceeding by prohibition to prevent respondent, as judge of the circuit court of Butler county, from taking further action in and about the disbarment of relator, which proceeding to disbar relator the respondent judge had caused to be instituted in the Butler county circuit court.

Relator's first contention against the right of respondent taking further action in the disbarment proceeding against him is based upon proposition that, as no affidavit of the existence of any fact contained in said charges against him was ever filed with respondent, or in the court of which he is the judge, and as it is not claimed that respondent judge had actual knowledge of the existence of said facts charged, or any of them, his order, made at the opening of the February term, 1901, of said Butler circuit court, directing that L. R. Thomasson, a member of the bar of an adjoining county, file and prosecute charges against relator, were wholly without authority; and, further, because respondent had no right to proceed with the hearing of the charges as filed by said Thomasson until they had been duly verified by said Thomasson, or some one, as required by law. For his second contention relator says that if respondent, as judge of the Butler circuit court, ever had jurisdiction to hear and consider the disbarment proceedings begun against him in said court, that jurisdiction and authority was lost by an order of February 13, 1901, which respondent, as judge of said Butler circuit court, made and caused to be entered upon the records of said court, in which said order is recited respondent's disqualification to sit at the hearing of said proceeding, and that Judge James Fox, of the Twenty-Seventh Judicial Circuit, is called in to hear and try said cause in his place and stead. And as relator's final protest against the right of respondent to further proceed with the hearing of the charges against him in the Butler circuit court he says that, after respondent had caused the order of February 13th, aforesaid, to be set aside at the subsequent June term of said court, and was threatening to proceed with the hearing of said disbarment proceeding, relator then prepared and filed an application in due form in said court, praying that he be granted a change of venue in said cause on account of the interest of the respondent judge in the result of said proceeding, and on account of respondent's bias and prejudice against relator, and also because L. R. Thomasson, who had filed and was prosecuting the proceeding against him, has an undue influence over the mind of respondent, and that said application was denied and overruled. On part of respondent the following contentions are made: First, that, as this court has no appellate jurisdiction in disbarment proceedings, it is powerless through the writ of prohibition to review his action in the proceeding against relator in the Butler circuit court, or to direct or to stay the course of his conduct therein; and, second, that since, under the statute, the defendant in a disbarment proceeding is not entitled to a change of venue, the order made by respondent as judge of the Butler circuit court on February 13th, disqualifying himself and calling in Judge Fox to preside at the trial of relator, was void, and, being void, it is a matter of no concern that it was not set aside until after the adjournment of said February term of court; and, further, respondent says that the application filed by relator in his own behalf that a change of venue be awarded to him was denied because, under the statutes of this state, a change of venue is not allowable in a disbarment proceeding.

To the relator's challenge of the authority of the respondent, as judge of the Butler county circuit court, proceeding with the hearing of the disbarment against him, for the reason set out in his first contention, all that need be said at this time is that all courts of general jurisdiction in this state, possessed of the authority to admit to the bar of its own motion a member of the profession, have the inherent power to cause to be instituted proceedings against that member, or any member of its bar, and to that end may designate any member of the same bar, or of any adjoining bar in the same circuit, or the prosecuting attorney of the county, for any professional misconduct such as merits and deserves such a course of procedure; and it is not essential to the court's authority under such proceedings that the facts of the charges made be within the actual knowledge of the judge of the court who may have directed that such proceedings be filed, or that the same be supported by the affidavit of any one; and, further, that prohibition would not lie to stay the action of the court in such a proceeding merely because of the absence of an affidavit supporting the charges made, even though the court might consider that the usual and better practice in disbarment proceedings is to require that the charges against the delinquent be supported by the affidavit of some one. So to the challenge made by respondent of the authority of this court to issue its writ of prohibition herein, because, as he asserts, that, having no appellate jurisdiction in disbarment...