Taylor v. Taylor
| Decision Date | 10 July 1959 |
| Docket Number | No. 41572,41572 |
| Parties | Margaret TAYLOR, Appellant, v. Hal R. TAYLOR, Sr., Appellee. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
A petition in a divorce suit was filed on behalf of a wife by an attorney who had been admitted to the bar in another state, who was a member of the bar association and regularly engaged in the practice of law in the other state but in addition, the attorney had been admitted to the bar and was a member of the bar association and regularly engaged in the practice of law in the state of Kansas. As more fully shown in the opinion, the trial court, pursuant to rule No. 41 of this court, as amended, ordered the association and appearance of a local attorney with the present attorney within a certain time or the suit would be dismissed. It is held, rule No. 41 of this court, as amended, is a proper and valid rule and upon the refusal of plaintiff to comply with the trial court's order, that court did not err in dismissing her divorce suit.
Howard E. Payne, Olathe, argued the cause, and W. C. Jones and H. Thomas Payne, Olathe, and Keith Martin, Mission, were with him on the briefs, for appellant.
William E. Scott, Kansas City, argued the cause, and was on the briefs for appellee.
The primary, or basic, suit involved in this appeal is one for divorce, but the question before us relates to the status of plaintiff's attorney and his authority to represent plaintiff as such in the domestic relations matter. The trial court ordered that plaintiff's attorney, pursuant to this court's amended rules No. 41 and No. 54, was required to obtain local counsel and further ordered that unless he did so within a certain time, the petition and other pleadings and orders would be stricken. Plaintiff's attorney failed and refused to comply and they were so stricken. It is from this order that plaintiff has appealed.
On March 10, 1959, plaintiff's verified petition for divorce was filed in Wyandotte county and signed by Keith Martin, 5917 Woodson Road, Mission, Kansas, as attorney for plaintiff. An order allowing temporary alimony, attorney's fee and a restraining order were entered on the same date.
Defendant moved to strike the petition and temporary order for the reason that Martin is a member in good standing of the Kansas City and Missouri state bar associations, that he regularly practices in that state and maintains his office at 2205 Bryant Building, Kansas City, Missouri; that Martin had no authority to file such petition or obtain such temporary order because he does not have associated with him as attorney of record a member of the bar of the state of Kansas, and the above pleadings were therefore filed in violation of rules No. 41 and 54 of the Supreme Court of Kansas, as amended, and G.S.1949, 7-104.
On April 17, 1959, in its ruling on this motion the trial court stated,
'It is therefore ordered that plaintiff's attorney, Keith Martin, be and he is required to obtain local counsel pursuant to amended court rules 41 and 54.
'It is further ordered that unless plaintiff's attorney shall do so by May 1, 1959, the petition shall on May 1, 1959, be stricken, as well as other pleadings and orders.'
The plaintiff filed a notice of appeal as a result of this order and on May 4, 1959, the trial court entered an order dismissing plaintiff's petition without prejudice to future prosecution and plaintiff amended her notice of appeal to include an appeal from the order of May 4, 1959.
The testimony showed that after his graduation from the law school of the University of Kansas in August, 1947, Martin was admitted to the bar of Missouri, became associated with a law firm in Kansas City, Jackson county, Missouri, and has been active in the bar association of the state of Missouri, as well as regularly practicing in the courts of that state since his admission there. In March, 1948, Martin was admitted to the bar of the state of Kansas and opened an office in Mission, Johnson county, Kansas, which he still maintains. He has been city attorney for Mission since 1951, is a member of the Kansas State Board of Tax Appeals, and has regularly practiced in the courts of Kansas since his admission to the bar of Kansas. He has also been active in the bar association of the state of Kansas as well as the Johnson County Bar Association.
There was testimony as to Martin's high scholastic achievements and as to his legal ability but these facts, although highly commendable to him, will not be reiterated since they do not alter the admitted fact that he is a member of the Missouri bar and regularly practices in that state nor can such evidence have any determinative force with respect to the primary question now before us, namely, the correctness of the trial court's order.
Under the judicial power that is given to it by article 3, section 1, of our state constitution, this court has from time to time promulgated necessary rules for the examination of applicants for admission to the bar of this state. G.S.1949, 7-103. These rules of the Supreme Court, while not statutory law, appear under G.S.1949, 7-122, and in the forepart of certain volumes of our Kansas Reports. The latest appearance is found in 183 Kan. xi, et seq., and the particular rules in question here are No. 41 and No. 54 which were amended on December 15, 1958. No. 41 was amended by addition of the following:
'Provided further however, The authority granted to practice law shall not be exercised except as provided under Rule No. 54 infra, when the licensee herein has been admitted to the Bar of another state or territory and is regularly engaged in the practice of law in such other state or territory.' 183 Kan. at page xviii.
Rule No. 54, as amended, reads as follows:
'An attorney regularly practicing outside of this state and in good standing as a member of the Bar of the place of his regular practice may be recognized as an attorney by ...
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