Thomas v. State ex rel. Stepney , 58 Ala. 365 ( 1877 )

BRIOKELL, C. J.

This was an information, charging the defendant with misconduct in his profession, as an attorney-at-law, and seeking his suspension or removal from the office of attorney, because of such misconduct. ' It is founded on the statute, Revised Code, § 882. The proceeding, though not strictly criminal, is of the nature of a criminal proceeding, and it is essential .to support it, that the information should with certainty disclose that the defendant is amenable to the proceeding, and the facts constituting the misconduct of which complaint is made. It is apparent, the statute is directed only against attorneys who are regularly licensed under the laws of this State, and who have taken the oath prescribed, “not to violate any of the duties enjoined on him by law.” There may be attorneys, by the comity of the courts, practicing in this State, yet without a license, and without having taken the oath the statute prescribes. The courts permitting them to practice have, while the attorney is before them, an inherent power to compel obedience and fidelity to the duties he voluntarily assumes, as they have to compel it from all their officers. These can not, and it is not intended they should be proceeded against under the statute. They fill no permanent official relation to the courts, or to the community. Their relation is temporary, and the comity which permits it may at any time be withdrawn, without offending any right the law protects. An attorney who has been regularly licensed, occupies a permanent official relation to tbe courts in which he has authority to practice, and to the community. The license confers on him a right to practice his profession, of which he can not be deprived without misconduct on his part, judicially ascertained and declared; a right conferred by law, not a matter of grace which courts may at pleasure recognize or withhold.

The averment of the information is, that the defendant “was on the first day of January, 1876, and thence hitherto hath been and now is, an attorney practicing in the courts of the State of Alabama, in the county of Dallas.” In Withers v. State, 36 Ala. 252, which was an application by an attorney for a mandamus to compel an inferior court to permit him to appear as counsel in causes in which he had been employed, the averment was that the relator “is a practitioner of law in all the courts of this State, both of State and federal jurisdiction,” and it was held an insufficient averment of a legal right to practice in the courts of this State. The court say, “We do not think that this is a sufficient allegation of his legal right to practice in the courts named. It is not alleged, nor was it shown on the hearing of the |pplic4tion, that the relator was regularly licensed under the laws of this State before the adoption of the Code, or that he had since that time been admitted by a license from a court competent to grant it, and had taken the oath prescribed.” The present averment is equally insufficient. Every fact stated may be true, and the defendant, without having a license from any court authorized to grant it, and without having taken the oath prescribed, may, by the mere comity of the courts of Dallas county, have been permitted to practice therein. It certainly is not an averment that he is an attorney having a license which creates between him and those courts a permanent relation, and confers on him a legal right to practice therein. An information of this character, on which, if judgment is pronounced against a defendant, a deprivation, temporary or permanent, of a legal right, is the consequence, and which involves moral turpitude, and a breach of official oath, must be clear and definite in its averments. If it is wanting in the certainty of statement, that will inform the defendant of the particular offense he is called to answer, or, if on a verdict of guilty it will not certainly appear the jury are warranted in their conclusion, or the court, looking to the information and verdict, can not see clearly that the defendant is subject to the penalty the law prescribes, it is insufficient. The court can not on this information say, whether the judgment of suspension was pronounced against a licensed attorney, subject to the judgment, or an attorney pursuing his profession in the courts of Dallas county, by the comity of those courts, and not subject to such judgment. On such an information no judgment should have been pronounced against the defendant.

Objection to the sufficiency of the information on this ground, is made for the first time in this court, after demurrer, and answer, and a trial before a jury in the city court. The statute is : “No judgment can be arrested, annulled or set aside, for any matter not previously objected to, if the complaint contain a substantial cause of action.” — Eev. Code, § 2811. The provision is applicable to all proceedings, other than strictly criminal prosecutions by indictment. A case is not within its influence, unless the pleading which stands in lieu of the complaint in ordinary civil suits, discloses a case of which the court has cognizance, and facts on which the court could properly render judgment by default, if the defendant failed to appear. Insufficiency in this respect is of substance, and is fatal on error.

Though the proceeding is in its nature criminal, the pleading originates with, and is the act of the relator, as essentially as is a complaint, in an action purely civil. The statute of amendments is very broad in its language, and comprehends all pleadings, except indictments. — E. C. § 2657. The insufficiency of the information may be cured by amendment in the city court, if the facts warrant it.

The application of the relator for a removal of the cause to the Circuit Court of the United States was properly denied. It fails to disclose any hostile legislation of the State, interfering with his full right of defense in the City Court. In the absence of such interference with, or denial of his rights, by such legislation, or by some regulation or custom of the State, the act of congress (§ 641 Eev. Statutes) does not authorize a removal. — In re Petition of Walls et cits., Albany Law Journal, Eeb. 9, 1878.

Eor the insufficiency of the information in the respect pointed out, the judgment must be reversed and the cause remanded.