State v. Mcrae

• Decision Date: 09 May 1905
• Citation: 49 Fla. 389,38 So. 605
• Parties: STATE ex rel. KEHOE, State Atty. v. McRAE, Clerk of Circuit Court.
• Court: Florida Supreme Court

38 So. 605

49 Fla. 389

STATE ex rel. KEHOE, State Atty. v. McRAE, Clerk of Circuit Court.

Florida Supreme Court

May. 9, 1905

In banc. Application by the state, on the relation of J. Walter Kehoe, state attorney, for a writ of mandamus to W. A. McRae clerk of the circuit court of Jackson county. Granted.

Syllabus by the Court

SYLLABUS

1. The issuance of a commission to take the deposition of an absent witness, when all the preliminary steps prescribed by law and the rules of practice leading up to the issuance thereof have been complied with, is a mere ministerial act, and ordinarily he has no right to refuse its issuance because he may be of the opinion that the deposition, when taken under it, will be incompetent or inadmissible evidence in the particular cause in which it is proposed to be used; but it is his duty to issue the commission, when properly applied for, leaving the admissibility of the evidence that it produces to be passed upon by the court when tendered, and he will be compelled by mandamus to perform such ministerial act.

2. The writ of mandamus will never be granted when, if issued, it would prove unavailing, or when compliance with it would be nugatory in its effects, or would be without beneficial results and fruitless to the relator.

3. Disbarment proceedings against an attorney are not designed as a penalty or punishment for any malfeasance or dereliction of duty by an attorney, but are solely for the purpose of purging the roll of legal practitioners of an unworthy or disreputable member. In such a proceeding no fine imprisonment, or other punitive sentence can be imposed; but the judgment therein can only be one simply revoking the formerly granted permit to practice law, and striking the name of the derelict from the roll of attorneys.

4. A disbarment proceeding against an attorney is not a criminal prosecution, and does not fall within that class of cases that require the charges to be preferred by information or indictment, or that require a trial by jury, or a confrontation of the accused with the witnesses against him.

5. In a disbarment proceeding against an attorney, the depositions of an absent witness, regularly taken on commission and written interrogatories, are admissible in evidence, if otherwise competent.

COUNSEL J. Walter Kehoe and Liddon & Smith, for plaintiff.

Robt. J. Boone, for respondent.

OPINION

TAYLOR J.

This mandamus proceeding instituted in this court by the relator J. Walter Kehoe, as state attorney for the First Judicial Circuit, against the respondent, W. A. McRae, as clerk of the circuit court for Jackson county, in said circuit, seeks to compel such respondent, as such clerk, to issue a commission to take deposition of a nonresident witness. The respondent has waived the issuance and service of an alternative writ agreeing that the petition for such alternative writ shall be considered and treated as such writ; and, so treating it, he has filed here an answer thereto. The petition alleges, in substance, that there is pending in the circuit court of Jackson county a certain proceeding in the name of the state against a certain attorney at law, having for its object the disbarment of such attorney; that said proceeding is at issue and ready for the submission of evidence; that there is a certain witness, who is a nonresident of the state of Florida, whose testimony is material to the issues on behalf of the state in such proceeding; that, after serving the defendant attorney in such disbarment proceeding with copies of the interrogatories proposed to be propounded to such absent witness, together with a notice setting forth reasons why the testimony of such witness was to be taken on commission, and the date that said commission was to be applied for, with the name to be proposed for commissioner on the part of the state, the said relator, as such state attorney, applied to the respondent, as clerk of the circuit court, upon due proof of all of the above preliminaries, for the issuance of a commission to take the testimony of such absent witness, but that the said clerk refused and still refuses to issue such commission, alleging as a reason for such refusal that he had no authority to issue a commission in such proceeding.

The answer of the respondent clerk admits all of the allegations of the petition to be true, and alleges that his refusal to issue such commission was based upon the belief that he had no authority to issue a commission to take the testimony of an absent witness in a disbarment proceeding, and, waiving all further notice or service, submits the question to the court whether he can be compelled by mandamus to issue a commission in a disbarment proceeding to take the testimony of an absent witness on behalf of the state in such proceeding.

The issuance by a clerk of the circuit court of a commission to take the deposition of an absent witness, when all the preliminary steps prescribed by law and the rules of practice leading up to the issuance thereof have been complied with is a mere ministerial act, and ordinarily he has no right to refuse its issuance because he may be of the opinion that the deposition, when taken under it, will be incompetent or inadmissible evidence in the particular cause in which it is proposed to be used; but it is his duty to issue the commission, when properly applied for, leaving the admissibility of the evidence that it produces to be passed upon by the court when it is tendered. Under this general rule we might, without further ado, order a peremptory writ, were it not for the further well-established fundamental principle of the law of mandamus that the writ will never be granted in cases when, if issued, it would prove unavailing, or when compliance with it would be nugatory in its effects, or would be without beneficial results and fruitless to the relator. State ex rel. Vereen v. Commissioners of Marion County, 27 Fla. 438, 8 So. 749; 13 Ency. Pl. & Pr. 493. In the presence of the last-mentioned rule, it becomes necessary to inquire whether the writ applied for in this case will be useless, unavailing, nugatory, and fruitless in its effects. If the depositions, when taken under the commission applied for and refused, would be wholly incompetent and inadmissible as evidence in the disbarment proceedings in which they are proposed to be used, then, clearly, the writ of mandamus applied for here to compel the issuance...