Worthen v. State

• Decision Date: 25 July 1914
• Docket Number: 692
• Citation: 66 So. 686,189 Ala. 395
• Parties: WORTHEN v. STATE ex rel. VERNER et al.
• Court: Alabama Supreme Court

66 So. 686

189 Ala. 395

WORTHEN v. STATE ex rel. VERNER et al.

No. 692

Supreme Court of Alabama

July 25, 1914

On Rehearing, November 7, 1914

Appeal from Tuscaloosa County Court; A.H. Alston, Judge.

Proceedings by the State, on the relation of one Verner and others, to remove G.B. Worthen from the list of practicing attorneys and to revoke his license. From a judgment granting the relief prayed, respondent appeals. Affirmed.

The following are the charges referred to in this opinion:

C. Informants charge that said Worthen has violated the provisions of section 6314, Code 1907, in this, that on, to wit, October 14, 1912, A.S. Vandegraaff, for and in the name of Washington Moody, as trustee, filed in the Tuscaloosa county court a bill of complaint against William Turner and others, and on, to wit, November 13, 1912, said Worthen filed in the office of the register of said court a demurrer to the bill of complaint in which he appeared generally as attorney for all the respondents named therein; that the said Worthen was not at that time, had not been, and has not been up to the present time, employed in any manner whatever by said George A. Weaver, one of the respondents, to represent him in said suit, and the said Weaver has never in any manner authorized the said Worthen to enter for or on his behalf any appearance whatever as attorney representing the said interest of Weaver.

D. Same as C.

G. Unprofessional conduct, in that, on October 22, 1912, Ira C. Lovelace and James W. Lovelace, individually and as copartners doing business under the firm of J.W. Lovelace &amp Co., were adjudged bankrupt in a District Court of the United States for the Southern District of Alabama; that among the assets of said bankrupt estate was a soda fount which had been in the store of said bankrupts, they having purchased same from W.J. Dominick; that prior to the sale of same by Dominick to said bankrupts, said Dominick had executed a mortgage on said soda fount to one R.L. Griffin; that on October 23, 1912, Griffin entered the storehouse of said bankrupts and took possession of the soda fount; that G.B Worthen was acting as attorney for said bankrupts, and on October 26, 1912, he filed in the office of Campbell, referee in bankruptcy in said United States courts, a petition praying that said Griffin be cited to show cause why he should not be punished for contempt of court in removing said soda fount; that said Griffin was cited by referee aforesaid to appear before said referee at Selma, Ala., on November 23 1912, to answer said contempt charge, and between October 26 and November 23, 1912, said Worthen accepted money, to wit, $25, from J.W. Dominick as his fee for service in having dismissed the consent proceedings against said Griffin which he himself, the said Worthen, had had instituted, and said Griffin was in fact released and discharged on the recommendation of said Worthen.

J. Manly Foster, of Montgomery, for appellant.

McKinley, McQueen, Aldridge & Snow, Vandegraaff & Sprott, Henry A. Jones, Wright & Fite, P.B. Traweek, Washington Moody, M.T. Ormond, E.L. Dodson, James Rice, and Clarkson & Morrisette, all of Tuscaloosa, for appellees.

McCLELLAN J.

This is an appeal from a judgment of the Tuscaloosa county court removing G.B. Worthen as a practicing attorney in this state. Code, § 3008. The trial of appellant resulted from proceedings instituted in virtue of Code, § 2997, by a large number of the attorneys resident of Tuscaloosa.

That section is as follows:

"Proceedings Upon Information of Individual. If the proceedings are upon the information of an individual, the accusation must be in writing, setting forth the facts upon which the charges are based, verified by the oath of such individual, or some other person, taken before any officer authorized by law to administer oaths in or out of the state, that such facts are true, and must be presented to and filed in said circuit court, or city court, or court of like jurisdiction, accompanied by security for costs, to be approved by the judge thereof." Code, § 2997.

The charges preferred were stated in nine lettered (from A to I) grounds. The affidavit appended to the charges was, in respect of its body, as follows:

"Before me *** personally appeared Fleetwood Rice, who, being by me first duly sworn, deposes and says that he is informed of the contents of the foregoing bill of complaint, wherein the state of Alabama, ex rel. C.B. Verner et al., is complainant, and G.B. Worthen is defendant; and affiant further deposes and says, on oath, that the allegations therein contained are true, to the best of his knowledge, information, and belief."

There was a motion, by the respondent, to strike the complaint because of insufficient or defective verification, under the statute quoted. This was the proper practice to invoke the court's ruling on the objection. Sorelle v. Elmes, 6 Ala. 706; Broadhead v. Jones, 39 Ala. 96; Preston v. Dunham, 52 Ala. 317. The motion's material grounds were these:

"The verification is insufficient in that it is made only upon the best of affiant's knowledge, information and belief; whereas, since the charges are made positively, the verification should be that the information is true to the knowledge of affiant."

"(3) The verification is not sufficient, and does not comply with the law, because it is required by law that affiant should state the facts set up in the information are true."

Proceedings of this character, though imposing, for acts or omissions justifying removal, no other punishment than disbarment from the practice of law, are highly penal in character and are quasi criminal; and so, statutes relating thereto are to be strictly construed. State v. Quarles, 158 Ala. 54, 48 So. 499.

The accusation or information prescribed by law as the inception and basis for the trial of the issue of removal or suspension vel non of an attorney from the practice of law in this state must be positive in its allegations. Code, §§ 2991-2993, 2995-2998, et seq. The nature, character, and effect of the proceeding forbids a qualified accusation against the attorney charged. A charge for removal or suspension of an attorney, that was undertaken to be rested on averment in the complaint of information and belief, as is met with in chancery practice, would be insufficient, and subject to appropriate demurrer.

The statute (section 2997) exacts an affidavit to the effect that the "facts" averred "are true." The objections taken in the quoted grounds of the motion would, if sustained, enforce the construction, of the just mentioned provisions of the statute, that the affidavit could only be made by a person or persons having personal, actual knowledge of the facts alleged; or, to state that result conversely, that information and belief would not afford the statute prescribed verification of such accusation.

So far as affidavits of the general character usually employed in initiating judicial proceedings and in promoting them to interlocutory or final judgments or decrees, they are of two kinds, viz., those which serve--directly or by confirmation of the averments of a pleading--as evidence to advise the judicial mind which is to consider and decide some preliminary issue or to determine upon the substantial rights of litigants in a concrete case; and those which alone serve to invoke the judicial power, without having any office or function to subserve with reference to or bearing upon the determination of any preliminary or substantial issue by the court or officer charged with a judicial duty in the premises. Jacobs v. State, 61 Ala. 448, 452. Of the first-mentioned class of affidavits are those considered in Burgess v. Martin, 111 Ala. 656, 20 So. 506, and in Schilcer v. Brock, 124 Ala. 626, 27 So. 473, (where the appointment of a receiver was prayed on facts averred in the bill); Dennis v. Coker, 34 Ala. 611 (where the affidavits presented were to sustain a claim); Woodward v. State, 173 Ala. 7, 55 So. 506 (where writ of injunction to abate a liquor nuisance was sought upon the facts alleged in the bill). The following of our decisions considered affidavits required to effectuate a mechanic's or materialman's lien, the statutes prescribing that the verification should be made by a person having knowledge of the facts: Globe Iron, etc., Co. v. Thacher, 87 Ala. 458, 6 So. 366; Leftwich Lumber Co. v. Florence, etc., Association, 104 Ala. 584, 18 So. 48; Florence, etc., Ass'n v. Schall, 107 Ala. 531, 18 So. 108; Long v. Pocahontas Coal Co., 117 Ala. 587, 23 So. 526.

The affidavit required by section 2997, ante, is of the nature of that thus described in Jacobs v. State, supra: "It is purely cautionary--a pledge of good faith in the commencement of the suit. ***" The affidavit under view can serve and does serve no other purpose than to put the judicial power in motion. It is without effect or bearing upon the issues made by the information. Its object in exaction is to prevent the initiation of disbarment proceedings without proper caution--fair consideration for him who is accused in the information. Given the preference of charges against an attorney, the entire office of the verification prescribed is to initiate a hearing thereon. There is no arrest; and there is no promise of imprisonment. The affidavit when made is not evidential in any sense. The statute prescribed no form for the verification. It does not command a verification by one having actual and positive knowledge of the facts alleged, as was the exaction in the case of mechanic's liens, before mentioned. It does not prescribe "the extent of the knowledge" the affiant shall possess (Lay v. Clark, 31 Ala. p. 409) in order to constitute a sufficient verification.

"The general rule is that an

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