Wernimont v. State ex rel. Little Rock Bar Ass'n , 101 Ark. 210 ( 1911 )

Frauenthal, J.,

(after stating the facts.) It is urged by counsel for the defendant that he was entitled to have a jury pass upon the charges made against him, and that the court erred in discharging the jury and proceeding with the trial.

Proceedings for the suspension or disbarment of attorneys for professional misconduct are not criminal, but civil' in their nature. They are not instituted or intended for the purpose of punishment. Their object is to preserve the purity of the courts and the proper and honest administration of the law. Attorneys are officers of the court, made so by its order when they are admitted to practice therein. The purpose of the proceedings for suspension and disbarment is to protect the court and the public from attorneys who, disregarding their oath of office, pervert and abuse those privileges which they have obtained by the high office they have secured from the court. The right to practice law is not an absolute right, but a privilege only. It is but a license which the court grants by its judgment of admission to the bar, and which the same court may revoke whenever misconduct renders the attorney holding such license unfit to be entrusted with the powers and duties of his office.' The revocation of such license is therefore only a civil proceeding, governed by the rules applicable to all civil actions. Weeks on Attorneys at Law, § 80; Randall v. Brigham, 7 Wall. 523; Ex parte Wall, 107 U. S. 265; Turner v. Commonwealth, 2 Metc. (Ky.) 619; State v. Harber, 129 Mo. 271; Ex parte Finn, 32 Ore. 519; In the matter of Chandler, 105 Mich. 235; In the Matter of an Attorney, 83 N. Y. 164.

In the practice prescribed by our statutes for the disbarment of attorneys, it is provided: “When the matter charged is not indictable, the trial of the facts alleged shall be had in the court in which the charges are pending, which trial shall be by jury, or, if the. accused fails to appear, or, appearing, does not require a jury, by the court. ” Kirby’s Digest, § 460. But in the trial of all cases civil in their nature, it is the province of the court to direct a verdict where the evidence is uncontroverted. And so, in this character of proceeding, the court has the power to direct the return of a specific verdict, even if a jury had been impaneled to try the charges made against the attorney, in the event the evidence adduced upon such trial is uncontroverted.

In the present proceeding, the court heard the case upon the facts set out in the defendant’s sworn answer, and therefore admitted by him, and the record of cases in said court whose verity could not be assailed. The evidence was therefore uncontroverted, and it became the province of the court, as well as its duty, to have directed a jury as to the verdict they should have returned, had the case been tried by a jury. If, therefore, the uncontroverted evidence adduced in this case sustains grounds for the disbarment of the defendant, he is not prejudiced, and can not complain because the court discharged the jury and proceeded, under such uncontroverted testimony, to make findings and render a judgment. The proceedings for the disbarment of attorneys are not formal. The prosecution thereof may be conducted in the name of the State by its prosecuting officer. (Turner v. Commonwealth, supra); or the court may require a member of the bar to present and prosecute the charges (State v. Harber, supra). After due and proper notice has been given to the defendant of the charges preferred against him, the court has the power to-proceed with the trial of the matter according to the rules of practice adopted by it not contrary to any procedure prescribed by statute. Where there is a conflict in the evidence adduced relative to the charges preferred, we are of the opinion that, by the above section 460 of Kirby’s Digest, the defendant is entitled to a trial thereof by a jury; but he is deprived of no right of which he can complain where the case is tried by the court without a jury when the evidence adduced upon the trial thereof is uneontroverted. Beene v. State, 22 Ark. 149.

The next question to be considered is whether or not the facts proved and admitted constitute a legitimate ground for striking the name of the defendant from the roll of attorneys of the Pulaski Circuit Court.

It is well settled that the power of removal from the bar is possessed by all courts which have authority to admit attorneys to practice. Any attorney may forfeit the license which he has obtained by abusing it, and the power to exact such forfeiture rests with the court which grants h. It is settled that the power to strike from the rolls the name of such an attorney is inherent in the court itself, and is indispensable to protect the courts in their dignity and the public in the proper administration of the law, as well as in maintaining the honor and purity of the profession. Weeks on Attorneys at Law, § 80; Beene v. State, supra; Ex parte Burr, 9 Wheat. 529; Bradley v. Fisher, 13 Wall. 355; Ex parte Robinson, 19 Wall. 505; In re Philbrook, 105 Cal. 471; Boston Bar Association v. Greenhood, 168 Mass. 169; 3 Am. & Eng. Law. 300; 4 Cyc. 905.

Such power should be exercised with caution, and only for reasons which would render the continuance of the attorney in practice inimical- to the just and proper administration of justice, or subversive of the integrity and honor of the profes sion. Ex parte Burr, supra.

Conduct of an attorney in the performance of his duties as such is especially subject to the supervision of the courts in which he exercises that profession. They may compel him to act honestly with his clients and honestly in his practices with the courts. He may be removed for malpractice and for dishonesty in his profession. This malpractice and dishonesty may consist of the perversion and abuse of the processes of the court to obtain an unwarranted and unjust action. If, by any act of commission or omission, he deceives the court so that he obstructs or pollutes the administration of justice, or by the suppression of truth obtains a result which the law would not warrant, he is guilty of malpractice and renders himself unworthy of the privileges which his license and the law confers upon him. If an attorney is guilty of unprofessional conduct, he is subject to suspensión or disbarment by the court, according to the degree of the moral turpitude evinced by such unprofessional conduct. It has been held that this professional misconduct may consist “in betraying the confidence of a client, in attempting by any means to practice a fraud, impose upon or deceive the court, the adverse party or his counsel, tampering with or suborning witnesses, fraudulently inducing them to absent themselves and avoid attendance upon court when it is suspected or known that their testimony will or may be prejudicial to him or his client; and, in fact, any conduct which tends to bring reproach upon the legal profession or to alienate the favorable opinion which the public should entertain concerning it.” Ex parte Ditchburn, 32 Ore. 538; In re Serfass, 116 Pa. St. 455; O’Connell, Petitioner 174 Mass. 253; Penobscot Bar v. Kimball, 64 Me. 140; In re Weed, 26 Mont. 507; note to In re Philbrook, 45 Am. Stat. Rep. 59.

In the case at bar the defendant conceived the .plan of .forcing the compromise or collection óf notes or small claims against persons resident in counties throughout the State by the use of the process of the court in a manner that is claimed to have been an abuse thereof. These notes were given for premiums for future insurance which failed by reason of the insolvency of the insurance companies, and on this account there was no valid consideration for these notes. He combined with a resident of Pulaski County in the purchase of these small claims, which were sold under circumstances which indicated that they were practically worthless, and their legality doubtful. It is the policy and spirit of our law, enacted into statute by our Legislature, that every defendant shall be sued in the township or county of his residence. To this general principle there are statutory exceptions, chiefly in cases where there is a joint liability against two or more defendants residing in different counties. In such cases it is provided that suits may be brought in the county of the residence of any of the defendants, and service of summons can then be had upon the other defendants in any county, thereby giving jurisdiction over their persons to the court wherein the suit is thus instituted. Kirby’s Digest, § § 6072 and 4558. But, before this jurisdiction can be acquired by virtue of these statutes over the person of such defendants nonresident of the county wherein the suit is instituted, it is essential that the defendant resident of the county where the suit is brought shall be a bona fide defendant. By our statute, it is further provided that, before judgment can be had against such nonresident defendants, a judgment must be obtained against the resident defendant. Kirby’s Digest, § 6074.

If the transaction is colorable and collusive, and the resident person not a defendant in fact and in good faith, then service of process of summons upon him would be incapable of laying the foundation for jurisdiction of the court over nonresident defendants served with summons in other counties. Upon such facts being made known to the court, it would be its duty to quash the service of summons upon such nonresident defendants. Such defendants can not be dragged from the forum of their residence by any sham or contrivance to evade suit against them in a court in the county where they reside. Such a perversion of the court’s process is a fraud practiced upon the court, which should receive its condemnation upon being made aware of it.

In the case of Capital City Bank v. Knox, 47 Mo. 833, the court expressed the view to take of such practice in the following language: “The demurrer confesses that the indorsement and transfer of the note by Vose to the plaintiff was a sham, for the sole purpose and object of enabling the Cole County Circuit Court to acquire jurisdiction over Knox, and compel him to answer and litigate the case in a county remote from his residence. Such a proceeding the law ought not to sanction. It would be productive of great injustice. The result would be, by a combination of parties for sinister ends, to abuse the process of the courts, and drag a defendant from one end of the State to the other to defend his rights at great trouble or expense, or else submit to be victimized.” Eames v. Carlisle, 3 N. H. 130; Parson v. Brown, 50 N. H. 484; Day v. Jackson, 5 Mass. 237; Dean v. Hewit, 5 Wend. 261; Maxfield’s Lessee v. Levy, 4 Dali. 330; Jones v. League, 18 How. 77.

It has been settled by the decisions of this court “that where a debtor and creditor are residents of the same State an attempt of the latter to evade the exemption laws of the State of their domicile by bringing suit in another State,” although apparently legal in form, is an abuse of process justifying the restraining power of a court of chancery. Greer v. Strozier, 90 Ark. 158; Greer v. Cook, 88 Ark. 93; Griffith v. Langsdale, 53 Ark. 71.

Knowing that under our statutes a defendant must be sued in the county or township of his residence, Wemimont, in order to evade these plain provisions, conceived the plan of having a resident of Pulaski County indorse the notes so that he apparently would be jointly liable upon them, and thus could be sued as one of the defendants. By this method he obtained the issuance of summons against defendants residing remote from the county where the suits were brought, and obtained for the court issuing such process apparently legal jurisdiction . over such defendants. If, as a matter of fact, such resident - defendant was not in truth a bona fide defendant, and so known to Wemimont who secured the issuance of such process, then he was guilty of practicing a fraud upon the court and subverting the proper administration of the laws. This was the more reprehensible because it was not done in one case, but in hundreds of cases. That the indorsement of the notes by Miller, and the transfer by him to the company of which plaintiff was the moving spirit, was only colorable and collusive, we think, is well established by the defendant himself. In his sworn answer, he says that the purpose of thus making the transfer of the notes and obtaining the guaranty thereof by Miller was to give to the courts of the county where Miller was a resident jurisdiction over the makers of the notes, who were nonresidents of such county. It is true that Wernimont also says that such transfers and guaranty by Miller were made in good faith, but it is inconceivable that it could be thought that the transaction was made in good faith when thereby Miller, who had only paid a small sum for these note's and who had only obtained a few hundred dollars therefor, guarantied the payment of all these notes and thus became absolutely liable for their face value, which amounted to almost $15,000, exclusive of interest, and when at the same time both he and Wernimont knew that the collection of any of these notes from the makers thereof was extremely doubtful. Besides, it is also stated by him that Miller was to receive 20 per cént. of the very notes whose payment in full he thus absolutely guarantied, and an additional sum of 25 per cent, if he himself collected them. Collected them from whom? He was equally liable to Wernimont with the makers thereof by his indorsement and guaranty; and if the transaction was bona fide, Wernimont’s company was not required to go to the trouble or expense of seeking the makers, but could collect these notes direct from Miller. It is plain that the transfer and guaranty by Miller was a subterfuge, concocted for the purpose of imposing on the court’s process and practice under the statute, in order to secure jurisdiction over persons nonresident of the county where the suit was brought, and attempting by this abuse of the court’s process, to extract from such nonresident persons compromises or judgments by default.

The presentation of these facts to the court would have resulted in quashing the service of such process and a deprivation . of jurisdiction of such court over such nonresidents. By suppressing these facts, which he knew, Wernimont practiced a fraud upon the court in obtaining the issuance of these'summonses and in endeavoring to secure judgments based thereon.

It is urged that Wernimont did not act in bad faith with the court because he thought he had the right to make the transaction and to adopt a practice for service of summons upon defendants nonresident of the county authorized by statute. But his action could not have been done in good faith, because The transaction with Miller is plainly colorable and collusive. His subsequent action in taking nonsuits in the circuit court, when the nonresidents prosecuted appeals from the judgments obtained before the justice of the peace evinced that he knew that he was committing an imposition upon the court. The number of the suits thus brought, and the continuance of the practice, indicate a total disregard of his duty as an attorney and officer of the court to uphold and maintain the proper administration of justice.

The lower court found that he was guilty of such malpractice by his perversion and abuse of the court’s process that he was not a fit person to continue the practice of law in that court, and therefore ordered his removal; and we are of the opinion that the uncontroverted testimony stains the finding and action of the court.

The judgment is accordingly affirmed.