State v. Shumate

• Decision Date: 01 December 1900
• Citation: 37 S.E. 618,48 W.Va. 359
• Parties: STATE v. SHUMATE.
• Court: West Virginia Supreme Court

37 S.E. 618

48 W.Va. 359

STATE v. SHUMATE.

Supreme Court of Appeals of West Virginia.

December 1, 1900

Syllabus by the Court.

1. The supreme court of appeals has jurisdiction of a writ of error to a judgment of a circuit court, disbarring an attorney for acts done in court as attorney, as for a contempt.

2. Does mandamus lie from this court in such case to the circuit to restore a disbarred attorney?

3. Where a rule to disbar an attorney summons him to answer charges contained in an affidavit of an informant filed in the case, it is sufficient, as the affidavit thus becomes part of the rule.

4. To disbar an attorney, the evidence of the charges against him must be full, preponderating, and clear.

Error to Circuit Court, Wyoming county; Joseph M Sanders, Judge.

H. K Shumate was found guilty of misconduct as an attorney, and stricken from the roll, and brings error. Reversed.

Robert H. Hoyle, for plaintiff in error.

Edgar P. Rucker, Atty. Gen., Campbell, Holt & Campbell, and L. C Anderson, for the State.

BRANNON J.

An affidavit was filed by Shepard in the circuit court of Wyoming county against Shumate, charging Shumate, who was an attorney in that court, with misconduct and malpractice as such; and thereupon the court entered an order filing that affidavit, and requiring that Shumate be served with a copy of that order, and requiring him to appear to show cause why him name "shall not be stricken from the roll of practicing attorneys in this court, and deprived of the privilege of practicing his profession in this court, for the charges and causes contained in the said affidavit." Shumate appeared to the rule, and the case ended with a judgment or order disbarring him, and he sued out a writ of error from this court.

The jurisdiction of this court to entertain a writ of error in such a case is challenged. My understanding is that the jurisdiction of this court is fixed by the constitution and statutes, and that there can be no writ of error or appeal except in those cases warranted by the constitution or statutes. Such I understand to be the general law wherever the constitution or statutes assume to specify the cases in which a writ of error and appeal shall lie, as in West Virginia is the case. I suppose that, where no constitution or statute does specify, the common-law writ of error or appeal lies; but such is not the case in West Virginia. We must therefore find either in the constitution or statute law authority to entertain this writ of error. Miller v Navigation Co., 32 W.Va. 46, 9 S.E. 57; Sharpe v. Robertson, 5 Grat. 518; People v. Richmond, 16 Colo. 274, 26 P. 929; Ex parte McCardle, 7 Wall. 506, 19 L.Ed. 264; 2 Enc. Pl. & Prac. 16; Elliott, App. Proc. §§ 75, 76. I do not think that warrant for this writ of error can be found in chapter 135 of the Code of 1899, nor in the cases enumerated in section 3, art. 8, of the constitution. This is not a civil case to warrant a writ of error, under chapter 135, because it is not a proceeding inter partes; Shepard being a mere informer or mover. The proceeding is simply one by a court to exclude from practice one of its own officers, and to protect public and court against him, and is therefore not a suit, but a peculiar proceeding sui generis, though very ancient and long practiced. The case is not that proceeding authorized by section 6, c. 119, Code 1899, empowering courts to annul or suspend the effect of an attorney's license, though it would seem to be tantamount thereto; but it has been twice held that the present proceeding--the old common-law proceeding of disbarment--is not that for the annulment or suspension of license under that statute. Walker v. State, 4 W. Va. 753; State v. McClaugherty, 33 W.Va. 250, 10 S.E. 407. Then what is the character of the proceeding? Simply the old common-law ex parte proceeding, taken by a court to exclude an officer of its own (an attorney) for conduct unfitting him to longer exercise his prerogatives and privileges before that court. It is not a criminal proceeding; for, as said by the supreme court of the United States in Ex parte Wall, 107 U.S. 265, 2 S.Ct. 569, 27 L.Ed. 552: "It is not a criminal proceeding, and not intended for punishment, but to protect the court from the official ministration of persons unfit to practice as attorneys therein. Such a proceeding is not an invasion of the constitutional provision that no person shall be deprived of life, liberty, or property without due process of law." Hence no jury is required. Not being a criminal proceeding, a writ of error does not lie under the clause of section 1, c. 160, Code 1899, giving "a party in a criminal case" a writ of error. The only colorable authority for jurisdiction in this case is found in the section just mentioned, which gives a writ of error to a party in a "proceeding for contempt." Is this a proceeding for contempt? Other members of the court think it is, or that it is what might be fitly denominated one quasi contempt. I am gratified that the other members of the court are clear as to this; for there ought to be a right to appeal in such cases involving the right of an attorney to earn a support for himself and family, and also because it involves personal stigma and dishonor, and there ought to be an appellate process straight from the decision, without the necessity of resorting to other process. I must be permitted to say for myself that I am not clear that a writ of error will lie for this case as a proceeding for contempt, and for the following reasons: The case of State v. McClaugherty, supra, makes this proceeding differ from a proceeding for contempt. "The power to disbar an attorney proceeds upon a very different ground from the power to punish for contempt." Weeks, Attys. at Law, § 141. Another reason is that contempts are for wrongs against the court, whereas disbarment may be for acts done in court as attorney, or for wrongs or crimes done out of court. Still, in answer to this, it may be plausibly said that those acts which are done in court may be contempt, and ought to be so regarded, while those done not as attorney, and out of court, would not be so regarded, and that, as the alleged wrongful act in this case was before the judge, it can, and should be, ranked as a contempt. But it will be asked, can it be that disbarment is without any redress if wrong? Not at all. Mandamus lies to restore the attorney to his office, and the presence of this remedy is another reason inducing me to the conclusion that a writ of error does not lie. "The remedy by mandamus has been applied from an early day to correct the abuses of inferior courts in summary proceedings against their officers, and especially against the attorneys and counselors of the court. The order disbarring attorneys, or...