State v. Smith

• Decision Date: 15 June 1903
• Citation: 75 S.W. 586,176 Mo. 90
• Parties: STATE ex rel. SCOTT v. SMITH et al.
• Court: Missouri Supreme Court

75 S.W. 586

176 Mo. 90

STATE ex rel. SCOTT v. SMITH et al.

Supreme Court of Missouri.

June 15, 1903.

ATTORNEYS—DISBARMENT—APPEAL — JURISDICTION OF COURTS OF APPEALS—TRIAL DE NOVO—CHANGE OF VENUE.

1. On appeal to the Kansas City Court of Appeals in proceedings for the disbarment of an attorney, the order made recited that the court, "being of the opinion that the matters involved are triable here de novo, and being duly advised, doth find" that defendant was guilty, etc. Held to show that the Court of Appeals tried the case de novo, rather than having exercised appellate jurisdiction.

2. Rev. St. 1899, § 4924, provides that an attorney guilty of misconduct may be removed on charges exhibited; and section 4925, conferring jurisdiction on certain courts to try the charges, provides that they may be exhibited in the Courts of Appeals, or the circuit court of the county. Section 4926 provides that the court where the charges are exhibited shall fix a day for hearing, allowing a reasonable time, and that a citation shall be issued, etc. Section 4935 provides that, in all cases of the trial of charges in the circuit court, defendant may appeal as in an action at law. Section 866 provides that the Courts of Appeals shall, on any appeal, examine the record, award a new trial, and reverse or affirm, or give such judgment as ought to have been given. Held that, on appeal to the Kansas City Court of Appeals from a judgment of the circuit court in disbarment proceedings, the Court of Appeals had no jurisdiction to try the case de novo, but its jurisdiction was appellate only.

3. The Court of Appeals had no authority to hear the case de novo on the theory that it was an equity case, as such court in equity cases reviews the evidence, etc., but does not try a case de novo.

4. Rev. St. 1899, § 819, provides that if the judge is interested, or related to either party to a cause, he shall award a change of venue, without any application from either party, unless all the parties consent that he may sit. Held that, where, in disbarment proceedings, defendant moved for a change of venue on the ground that the judge was prejudiced against him, it was the duty of the latter to award a change of venue.

In Banc. Certiorari by the people, on the relation of William J. Scott, to review proceedings of the Kansas City Court of Appeals on appeal thereto in proceedings to remove relator from practice as an attorney at law. Judgment removing relator reversed.

Adiel Sherwood and Scaritt, Griffith & Jones, for relator. Gardiner Lathrop, F. F. Rozzelle, Frank F. Brumback, R. E. Ball, and H. M. Beardsley, for respondents.

Statement.

FOX, J.

The proceeding in this court is a writ of certiorari directed to the judges of the Kansas City Court of Appeals, requiring them to send to this court the record and proceedings in a matter pending before them on appeal from the circuit court of Jackson county, Mo., at Kansas City, Division No. 1, entitled, "In the Matter of Proceedings to Remove William J. Scott from Practice as an Attorney at Law." The issuance of the writ by this court, directed to the judges of the Kansas City Court of Appeals, springs from a proceeding instituted in the circuit court of Jackson county to disbar the relator, who was a practicing attorney. On January 13, 1900, there was filed in the office of the clerk of the circuit court of Jackson county, Mo., a petition signed by Gardiner Lathrop, F. F. Rozzelle, Frank F. Brumback, R. E. Ball, and H. M. Beardsley, who represented themselves to be a committee appointed by the Kansas City Bar Association to file and prosecute proceedings for disbarment against Mr. Scott. This petition alleged that Mr. Scott had been guilty of improperly retaining his client's money, and of deceit in his professional capacity. Mr. Scott was cited to answer said charges. On June 16th the parties appeared for trial, and Mr. Scott filed an application for a change of venue on the ground that the judge of said division was an active member of the Kansas City Bar Association, and was therefore interested in said cause, and was also personally prejudiced against Mr. Scott, and that Scott could not have a fair trial before him. This application was denied. Mr. Scott then filed his answer in said cause, which was a general denial of the charges. He then moved the court to impanel a jury to try the cause, and this motion was also denied. The court then, over Scott's protest, heard the evidence, and on June 22, 1900, rendered judgment of disbarment against Mr. Scott. Motions in arrest and for new trial were duly filed and overruled, and a bill of exceptions in due and regular form was by the court signed, sealed, approved, allowed, and ordered to be filed as part of the record in said cause. This cause was argued and submitted to the Kansas City Court of Appeals on December 3, 1900, and it is asserted by relator that after consideration the said Court of Appeals filed its written opinion in said cause, and, after deciding and holding that the lower court had committed error, proceeded to assume original jurisdiction itself, and rendered a judgment of disbarment against Mr. Scott, without affirming, reversing, modifying, or correcting the decision of the lower court. On March 13, 1902, Mr. Scott filed in said court his motion for a rehearing, which was by the court overruled. Mr. Scott then petitioned this court for a writ of certiorari, which was granted, served, and due return thereof made to this court, and the record is now before us for final disposition.

That we may fully comprehend and appreciate the action of the Kansas City Court of Appeals in respect to the disbarment proceeding pending in that court, we here quote the opinion announced in that case:

"On January 13, 1900, a complaint was filed in the circuit court by Gardiner Lathrop, Frank F. Rozzelle, R. E. Ball, Henry M. Beardsley, and Frank F. Brumback, in which it was alleged that they were each and all attorneys at law, duly and regularly licensed, enrolled and practicing in the circuit court of Jackson county, Missouri; that they were each and all members of the Kansas City Bar Association, as a committee to present to that court, and prosecute therein, charges against William J. Scott, an attorney at law practicing at the bar of said court, for improperly retaining his client's money, and for deceit in his professional capacity as such attorney, and to petition this court for the removal of said William J. Scott from practice as an attorney at law. And as such committee, and individually as attorneys as aforesaid, it was in said complaint charged by them that on the 9th day of June, 1879, William J. Scott was by the circuit court of Jackson county, Missouri, at Kansas City, duly and regularly licensed and enrolled as an attorney at law, and upon such date last named duly and regularly took the oath as then prescribed by the laws of the state of Missouri, and ever since the said 9th day of June, 1879, said William J. Scott has been, and now is, an attorney at law, duly and regularly licensed, enrolled, and practicing at the bar of the circuit court of Jackson county, Missouri. * * * The respondent [appellant] contends that the judgment should be reversed because the trial court erred in refusing to grant him a change of venue on his application made for that purpose.

"This is a case where the matter charged in the complaint is not indictable, and was for that reason triable by the court. Rev. St. 1899, § 4933. And here it is triable de novo. We will examine the evidence contained in the record, and give such judgment as we consider shall be warranted, uninfluenced by the finding and judgment of the court below. We will proceed to examine the case as if it were one in equity, or one in which we were exercising original, rather than appellate, jurisdiction. It is our duty to hear, try, and determine the matter in issue anew, without regard to any error, defect, or imperfection in the proceedings, trial, or judgment of the circuit court.

"When the attention of the learned trial judge was called to the fact that he was a member of the bar association, the complainant and active prosecutor in the matter, and was therefore interested therein (Inhabitants, etc., v. Smith [Mass.] 11 Metc. 390; Fitch v. Bates, 11 Barb. 471), it became his duty, sua sponte, under section 819, Rev. St. 1899, to award a change of the venue to some other division of the Jackson circuit court (State v. Woodson, 86 Mo. App. 254; Lacy v. Barrett, 75 Mo. 469; Gale v. Michie, 47 Mo. 326; Barnes v. McMullins, 78 Mo. 261). But suppose the disqualification of the judge did deprive him of jurisdiction, and notwithstanding this he erroneously proceeded with the trial and gave judgment, and after that the matter has been transferred here by appeal, and for trial de novo; what figure can such an error cut in our determination of the case? How can it prejudice the complainant [appellant] in his new trial here? By the respondent's appeal the matter is brought before us to be tried and determined just as if we were exercising our original, instead of appellate, jurisdiction. Our original jurisdiction in a matter of this kind is concurrent with that of the circuit court (Rev. St. 1899, § 4925); and since it is here by appeal, and the parties have voluntarily subjected themselves to our jurisdiction, all previous defects in the proceedings must be considered as waived. The respondent, who has invoked by his appeal the exercise of our jurisdiction, can derive no benefit in the new trial, to which his appeal entitles him, by reason of any error which may have intervened in the proceeding in the court below. Wilkerson v. Sampson, 56 Mo. App. 276; Pearson v. Gillett, 55 Mo. App. 312. * * * "(4) The charge that the respondent improperly retained the money of Kirkendall & Co., his clients, as we understand it, is abandoned here by the prosecution, so that it only remains to...