State v. McElhinney

Decision Date28 March 1912
Citation145 S.W. 1139
PartiesSTATE ex rel. SHACKELFORD v. McELHINNEY, Judge.
CourtMissouri Supreme Court

Act March 27, 1911 (Laws 1911, p. 189), prohibits judges of probate courts in counties of over 50,000 population from practicing law, and provides a penalty therefor. Relator, the probate judge in such a county, came into court and moved for permission of the court to represent parties defendant in a pending case, when no such right had been denied him, and such motion was overruled, and he then brought an original proceeding for mandamus. Held that, as there had been no charges or disbarment proceedings against relator, and as he was not shown to have violated or been convicted of violating the law, the ruling on the motion was not a final and appealable judgment, and that for want of a pending case the writ would be denied.

4. MOTIONS (§ 1)—DEFINITION—"JUDGMENTS."

Motions are not original and independent proceedings, but are only incidental steps taken in all classes of cases pending; and the rulings of the court thereon are not "judgments."

5. APPEAL AND ERROR (§ 129)—DECISIONS REVIEWABLE—MOTIONS.

Rulings upon motions are not appealable, except when expressly authorized by statute.

6. ATTORNEY AND CLIENT (§ 57)—DISBARMENT —REVIEW.

A judgment disbarring an attorney from practicing law is final; and an appeal will lie therefrom.

Original mandamus proceeding by Robert L. Shackelford against John W. McElhinney, Judge of the Circuit Court of St. Louis County, to compel respondent to recognize and permit relator to practice law in that court. Alternative writ of mandamus quashed, and permanent writ denied.

This is an original proceeding brought in this court by the relator, seeking by mandamus to compel the respondent to recognize and permit the former to practice law in the circuit court of St. Louis county, of which the latter is the duly elected, qualified, and acting judge.

The facts of the case stand uncontradicted, and are fully stated in the return, and are as follows (formal parts omitted):

"Now comes the said respondent, and for his return to the alternative writ of mandamus in the above-entitled cause hereto attached, says that said relator ought not to have a writ of peremptory mandamus herein, because he says: It is true that the respondent is, and at all times mentioned in said writ was and still is, one of the judges of the circuit court of St. Louis county, Mo., duly qualified and acting as such; that said relator, Robert L. Shackelford, is a citizen of the United States of America and of the state of Missouri, and since about the year 1879 has been admitted to the bar of said state and duly licensed to practice law, and said license has not been revoked or annulled, but is in full force and effect; and for about 12 years last past said relator has been a duly licensed, enrolled, and practicing attorney at law of the said circuit court of St. Louis county, and as such is an officer of said court, and has not been and is not guilty of any contempt of said court.

"It is also true, as this respondent is informed and believes, and therefore admits, that said relator was, prior to May 1, 1910, retained as attorney at law for two defendants, Sebastian Scharer and Fred Kirchner, in a certain cause then and now pending in the division of said circuit court over which the respondent presides as judge aforesaid, wherein Henry Goewrt et al. are plaintiffs and Adolph Scharer, Sebastian Scharer, and Fred Kirchner are defendants, and said relator has not been discharged from such retainer, and is now attorney at law for said two defendants, and as such attorney at law appeared in said circuit court for said two defendants and procured orders to be made in said cause, and on the 7th day of January, 1911, filed answers in said cause for said two defendants.

"And as to whether said relator has been retained for any party or parties in any other cause or causes pending in said court, or has been or is attorney at law for any such other party or parties, the respondent says he has no knowledge or information sufficient to form a belief. And it is true that said relator applied to the respondent as a court, and in open court asked leave and permission, as of right, to further appear in said cause in said court as attorney for said two defendants, and to conduct their defenses in said court as their attorney at law, but only at the time and in the manner hereinafter averred and set forth, and at the same time, in said cause and in the manner and for the reasons hereinafter set forth and averred, and not otherwise, the respondent refused to permit the said relator to appear in said court as attorney at law; and it is not true that the respondent has, at any other time or in any other matter, cause, or proceeding, refused to allow the said relator to appear in said court as attorney at law. And it is not true that the respondent, in so refusing to allow said relator to appear as attorney at law and conduct said defenses as aforesaid, acted wrongfully; and it is not true that the respondent has at any time wrongfully refused to permit said relator to appear in said court as an attorney at law.

"And for further return to said writ, and for cause why a writ of peremptory mandamus should not issue herein, the said respondent states: That, at the general election held in the said county of St. Louis and in the state of Missouri on the first Tuesday after the first Monday in November, 1910, the said relator, Robert L. Shackelford, was duly elected to the office of judge of the probate court of said county of St. Louis, and thereafter was duly commissioned to said office as such probate judge by a commission issued by the Governor of the state of Missouri, in December, 1910, and duly qualified as such probate judge in December, 1910, by taking the oath of office prescribed by the Constitution of the state of Missouri; and on the 31st day of December, 1910, entered into bond, approved by the clerk of the circuit court of said county, conditioned for the faithful performance of his duties as such judge, as required by law, and on the 1st day of January, 1911, duly accepted said office of probate judge and entered upon the discharge of the duties of said office; and from said 1st day of January, 1911, said relator has continued to be and to act as such probate judge of said county and to discharge the duties of said office, and as such judge to claim and to exercise all the rights and authority and to have and receive all the privileges, fees, and emoluments of and pertaining to his said office, and is now such probate judge, and as such is discharging all the said duties and exercising all the said rights and authority and having and receiving all the said privileges, fees, and emoluments of and pertaining to his said office of probate judge of St. Louis county.

"That by an act of the General Assembly of the state of Missouri entitled `An act to prohibit judges of probate courts in certain counties in this state from practicing law, and providing a penalty for violation thereof,' which was approved on the 27th day of March, 1911 [Laws 1911, p. 189], it was and is provided as follows: `It shall be unlawful for any judge of any probate court in any county in this state, which now has or may hereafter have a population of fifty thousand inhabitants or more, to practice or act as counselor or attorney in his own name or in the name of any other person, in any of the courts of this state, during the term of office for which he shall have been elected or appointed. Any person violating the provisions of this act shall be deemed guilty of a misdemeanor, and shall forfeit his right to hold said office.' That said act went into effect on the 19th day of June, 1911, and ever since said date has been and is now a law of this state.

"That the said county of St. Louis is a county of the state of Missouri, which at all times since the year 1910 has had and still has a population of more than fifty thousand inhabitants, to wit, a population of 82,417 inhabitants; and the said act of the General Assembly of Missouri, approved March 27, 1911, at all times since it went into effect, as aforesaid, has been and is applicable to said county.

"That on the 16th day of October, 1911, the said relator, Robert L. Shackelford, filed in the said division of said circuit court over which the respondent presides as judge, in said cause in which Henry Goewrt et al. are plaintiffs and Adolph Scharer et al. are defendants, then and now pending in said division, a motion in writing, and in said motion alleged and stated his qualifications and license, enrollment and authority, as an attorney at law and his retainer as attorney for Sebastian Scharer and Fred Kirchner, defendants in said cause, all as the same are hereinbefore stated and admitted; and also stated and alleged in said motion the passage by the General Assembly of the state of Missouri of said act, approved March 27, 1911, and that the same went into effect on the 19th day of June, 1911; and also in said motion stated and alleged the election, commission and qualifications of said relator as judge of said probate court, and that he had entered upon the discharge of the duties of said office on the 1st day...

To continue reading

Request your trial
18 cases
  • Mo. Cattle Co. v. Great Southern Life Ins. Co.
    • United States
    • Missouri Supreme Court
    • July 1, 1932
    ...be rendered, but only an action to determine and declare future rights, the decree merely amounts to a declaratory judgment. State ex rel. v. McElhinney, 241 Mo. 604; State ex rel. Hahn v. City of Westport, 135 Mo. 133; Fugel v. Becker, 2 S.W. (2d) 746; Honour v. Equitable Life Assurance So......
  • State ex rel. Shackleford v. McElhinney
    • United States
    • Missouri Supreme Court
    • March 28, 1912
  • Leimer v. Hulse
    • United States
    • Missouri Supreme Court
    • January 3, 1944
    ...court. Amend. XIV, U.S. Constitution; McVeigh v. United States, 11 Wall. 259; Windsor v. McVeigh, 93 U.S. 267; State ex rel. Shackelford v. McElhinney, 145 S.W. 1139, 241 Mo. 592. (5) The trial court erred in holding in effect that plaintiff in error, a citizen of the United States, had for......
  • Bussiere's Adm'R v. Sayman
    • United States
    • Missouri Supreme Court
    • April 2, 1914
    ...if not fundamental, well settled. Snoddy v. Pettis County, 45 Mo. 361; Ackerman v. Green, 201 Mo. 231, 100 S. W. 30; State ex rel. v. McElhinney, 241 Mo. 592, 145 S. W. 1139; State v. Vaughn et al., 83 Mo. App. 457. Clearly, then, unless the section above set out, by virtue of the amendment......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT