Shotkin v. State , 73 Ga. App. 136 ( 1945 )

1. (a) Judges who are acting in their official capacities are not proper parties to a bill of exceptions concerning a judgment rendered by them during the course of their official duties.

(b) Where, as here, the party defendant is apparent on the face of the bill of exceptions the bill of exceptions will not be dismissed on the ground that the party defendant in error is not more specifically named.

2. The court did not err in sustaining the demurrer to the petition and motion of the plaintiff in error, for any of the reasons assigned.

DECIDED OCTOBER 2, 1945. REHEARING DENIED OCTOBER 30, 1945. On June 13, 1944, the plaintiff made application to the judges of the superior court of Fulton County for permission to take the next succeeding bar examination, to be held on June 28. In this application, among other things he alleged "that he is of good moral character, and this he is ready to show to the satisfaction of the court." On June 15 thereafter, he paid a fee for the privilege of standing the said bar examination, and received a permit to stand such examination "upon compliance with the law in the Atlanta circuit." The plaintiff stood the bar examination, and on July 5 thereafter the examining board certified to Honorable Paul S. Etheridge, judge of the superior court of the Atlanta circuit, that the plaintiff had evidenced by the examination a knowledge of the law which entitled him to be licensed to practice law in this State. On July 10 following, he presented his certificate from the examining board to the superior court of Fulton County, making proper application for admission to the bar. The application came before Honorable Paul S. Etheridge, one of the judges of the superior court of Fulton County, and he passed an order on that date authorizing the clerk of said court to issue a license to the plaintiff to practice law, contingent upon a compliance with the law in connection therewith. On the same date, July 10, the clerk of the court issued a license to the plaintiff to practice law. On August 14, 1944, the grievance committee of the Atlanta bar association, appointed by the superior court to investigate and report, filed a report to the effect that the plaintiff had made a fraudulent application for a license to practice law. and asking the court to revoke any proceedings which had been instituted with a view of licensing the plaintiff to practice law. On the same date, August 14, Honorable Paul S. Etheridge passed an order to the following effect: "The within and foregoing order of July 10, 1944, having been signed with the understanding that the application of Bernard M. Shotkin for license to practice law in the State of Georgia was under investigation by the grievance committee of the Atlanta bar association appointed by the court, and the license to practice law having been withheld pending the report of said grievance committee, and said grievance committee having filed with the judges of the superior court an adverse report, it is hereby ordered that the within and foregoing order of July 10 be revoked, that the order granting a license to applicant be cancelled, and that the application of Bernard M. Shotkin for a license to practice law in Georgia be denied. It is further ordered that the report of said grievance committee be filed as a part of the record in this case. This August 14, 1944."

On August 30, the plaintiff paid his professional tax to the State of Georgia to practice law. The next day, Honorable Paul S. Etheridge passed an order to the effect that the order of August 14, passed by him for the court (which we have above quoted), was improvidently passed because the plaintiff had not been afforded an opportunity to be heard. This order of August 31 further provided that the said grievance committee may bring a motion or petition to cancel or revoke said license, and provided further that a rule nisi might obtain and that F. L. Breen and L. C. Dodson agreed to accept service of any motion the committee might see fit to bring. On the following day, September 1, 1944, Honorable Paul S. Etheridge passed the following order: "Upon consideration of the foregoing order providing that the grievance committee may petition the court for cancellation of said license, and said committee having protested the granting of said order as well as previous orders herein, and it appearing that the court desires that the whole question of the license of B. M. Shotkin be passed upon by the judges in conference, it is ordered that the entire matter be referred to the entire body of judges of the Atlanta circuit for disposition, and the July term of said court is hereby extended for said purpose." Pursuant to the provisions of the last-mentioned order (of September 1), the six judges of the superior court of Fulton County met and after consideration passed the following order: "In re Application for admission to the bar and to practice law by Bernard M. Shotkin: Pursuant to the order of this court by Judge Paul S. Etheridge, made on September 1, 1944, the judges of this court have considered this matter, and order as follows:

"First: That the order signed by Judge Paul S. Etheridge on July 10, 1944, declaring that the applicant, Bernard M. Shotkin, is entitled to be licensed to practice law in Georgia, and directing the clerk of the court to issue him such a license, is hereby revoked and set aside. Second: That any license to Bernard M. Shotkin to practice law in this State that may have been heretofore issued and delivered by this court, or any of its officers, be, and the same is, hereby cancelled and revoked. Third: That the orders in this matter by Judge Paul S. Etheridge made on August 14 and August 31, 1944, be, and the same are, revoked and set aside.

"The purpose and effect of this order is to revoke as above provided, and to leave open to the applicant, should he so desire, the right to apply to this court for a hearing on his application for admission. Let this order be filed by the clerk with the other papers in this matter. This 21st day of September, 1944. (Signed) Edgar E. Pomeroy, Virlyn B. Moore, Paul S. Etheridge, Walter C. Hendrix, A. L. Etheridge, Frank A. Hooper Jr., Judges, Superior Court, Atlanta Judicial Circuit."

Thereafter, on January 2, 1945, the plaintiff filed a petition and motion to set aside the order of the court dated September 21, 1944, alleging substantially that the judges of the superior court of Fulton County were unauthorized to pass such ex parte order without any notice or service on the plaintiff, and that the provisions of the order of September 21, 1944, were illegal, void, and violated the constitutional rights of the defendant under the due-process clause. The motion to set aside and the amendments thereto set forth the provisions of the court orders and documentary evidence as detailed in the statement of facts above, except that in the second amendment (there being two) the defendant moved to amend the prayers of his original petition by striking paragraph (b) of the original petition and of the amendment on the ground that "the petitioner does not and did not intend to ask for a hearing on an application to practice law because he claims he now has such right." The solicitor-general of the Atlanta circuit filed a demurrer to the plaintiff's motion to set aside and revoke the order of September 21, 1944, on the ground that the petition as amended set forth no valid reasons why the said order of September 21, 1944 should be set aside or modified. The issue thus formed as between the motion to set aside of the plaintiff and the demurrer of the State came on for hearing on May 18, 1945, and before three of the judges of the superior court sitting together (with Judge Pomeroy presiding), who passed the following order: "The foregoing demurrer renewed to the petition and motion as amended coming on for hearing and after argument thereon, it is ordered that said demurrer be and the same is hereby sustained on each and every ground thereof, and said petition and motion as amended is hereby dismissed."

At the time of the rendition of the last order and judgment, Judge Pomeroy made an oral statement as follows: "I will say briefly that the court is of the opinion that the order of September 21 is a valid and binding order, and that the only right which the movant has is now to apply for a hearing upon his original application for admission to the bar."

The plaintiff in his bill of exceptions assigned as error the order of May 18, 1945, sustaining the demurrer to the plaintiff's petition and motion to set aside the order of September 21, 1944. 1 (a) After the bill of exceptions had been filed in this court, the plaintiff in error made a motion to amend it by adding thereto, as parties defendant, the six superior court judges who passed the order of September 21, 1944. We know of no law which would authorize the grant of such a motion. These judges were not acting in their individual capacity, but were acting only in their official capacity on behalf of the State of Georgia; therefore this court has no authority to make them parties defendant in their individual capacity or otherwise. This motion is denied.

(b) The State also filed a motion to dismiss the bill of exceptions on the ground that it does not appear therefrom that there is a proper party defendant. We think that this motion is without merit. The bill of exceptions shows on its face that the State of Georgia is the defendant in error. This is sufficient, and the motion to dismiss is denied.

2. We will now discuss the merits of the case before us. When the plaintiff applied for permission to stand the bar examination with a view of being permitted to practice law, he stated in his application that he was of good moral character, which he stood ready to prove to the satisfaction of the court. After having successfully passed the examination, he applied on July 10 for a license to practice law. The Code, § 24-3304 (Ann. Supp.), provides that an applicant for admission to the bar at the time of filing his application shall answer a questionnaire provided him by the clerk of the court. While it does not appear in the record that the defendant signed this questionnaire, there being nothing contrary shown in the record, it is to be presumed as a matter of law that the applicant did his duty and signed the questionnaire, and that he left it with the clerk to be delivered to the grievance committee appointed by the judges of the superior court of Fulton County. Among the questions in the questionnaire is the following: "Have you ever been indicted or prosecuted for any crime, felony, or misdemeanor in Georgia or in any other jurisdiction? (If so, give court, offense, as well as result.)" The Code, § 24-3305 (Ann. Supp.), provides: "The clerk shall immediately deliver the questionnaires when answered and signed by the applicants to the committee of the bar; and no one shallbe admitted to the bar until the committee shall have made itsreport to the court as to the moral character and fitness of theapplicant, provided the report is made within 30 days after the questionnaire is referred to the committee, or within such extension of time as the committee may have obtained from the court." (Italics ours.)

Section 24-3306 (Ann. Supp.) provides: "If the committee should disapprove of the admission to the bar of such applicant upon the ground of lack of moral character and fitness, and the applicant should desire to controvert the grounds upon which such report is based, the court will hear evidence and pass upon the same, after reasonable notice to the applicant, and an opportunity to be heard."

It does not appear on what date the clerk of the court transmitted the questionnaire to the grievance committee, but it does appear in the record of this case that on August 14, 1944, the grievance committee filed a report of their findings addressed to the judges of the superior court of Fulton County. In this report, which is a copy of a resolution of the committee, it was found to be the judgment of the committee that the plaintiff's application for admission to the bar should be denied, and "that, if any proceeding has been taken toward admitting him to the bar, the same be revoked and set aside on account of fraud in the application made by the applicant." It does not appear that this report of the Grievance Committee was not filed within thirty days from the date the questionnaire was turned over to the clerk of the court; but, since the record is silent, and there is nothing to the contrary to show that the committee made their report within thirty days from the time they received it from the clerk of the court or that they did not get an extension of time from the judges of the superior court, this court will presume as a matter of law that they did their duty and made the report within the time required by law. These facts being considered true and being undisputed, and if the Code sections which we have herein before quoted are to be considered as of binding force (and we know of no law to the contrary), then Judge Paul S. Etheridge was without authority of law to order a license issued to the plaintiff to practice law, on July 10, or the very day that the plaintiff filed with the clerk his questionnaire which the rule provided should be forwarded to the grievance committee. And he likewise was without authority to pass the order of August 31, 1944. Both of such orders were void and a nullity. We do not mean to east any reflections whatsoever on Honorable Paul S. Etheridge, since deceased, for it appears in this record from his order of August 14, 1944, that the applicant well understood at the time, that his character was then being investigated by the grievance committee, and that Judge Paul S. Etheridge did not authorize or direct that the applicant should receive a license to practice law before the report of the grievance committee was in hand. It is further to be inferred from the order of August 14 that it was not the intention of the said judge to grant unconditionally to the plaintiff in error a license to practice law. A proper construction of the order of August 31, 1944, is to the effect that Judge Paul S. Etheridge out of the goodness of his heart opened the door to the plaintiff for a hearing on the question as to whether the plaintiff's character was such as the law requires for the grant of a license to practice law. This is evidenced by the order passed by Judge Etheridge on September 1, continuing the July Term of the superior court, and referring the whole matter to the judges of the superior court as a whole. The judges met in pursuance of the request of Judge Etheridge, he sitting with them; and, during the same term of court at which the plaintiff contends he received an unconditional license to practice law passed the order of September 21, 1944. It will be noted that this order, in addition to setting aside the orders of Judge Etheridge dated July 10, August 14, and August 31, 1944. further left open to the applicant, should he so desire, the right to apply to the court for a hearing on his application for admission to the bar. In the order of August 14, Judge Etheridge stated, among other things, that the order of July 10 had "been signed with the understanding that the application of Bernard M. Shotkin for license to practice law in the State of Georgia was under investigation by the grievance committee of the Atlanta bar association appointed by this court, . . the license to practice law having been withheld pending the report of the aid grievance committee." It is significant in this connection to read the second division of the order and judgment of the judges as a whole, dated September 21, 1944, wherein it is stated "that any license of Bernard M. Shotkin to practice law in this State that may have been issued and delivered by this court or any of its officers be, and the same is, cancelled and revoked." The particular phrase of this provision is, "or any of its officers." We think that it is easily inferable, in considering this phrase in connection with the order of August 14, that some officer of the court other than the judges thereof without authority delivered to the plaintiff the license to practice law. Whether or not we are correct in this reasoning, we feel secure in our opinion that the order authorizing the defendant to receive a license and the issuance of the license thereunder were void and a nullity, having been issued at a time contrary to the provisions of the law. The order, being thus void and a nullity on the face of the record under the Code, § 110-709, may be so held when "it becomes material to the interests of the parties to consider it." In such event no petition, no notice, no service, no hearing, and no order are necessary to set it aside. It may be disregarded. InJowers v. Kirkpatrick Hardware Co., 21 Ga. App. 751 (2) (94 S.E. 1044), this court said: "A void judgment ``is a mere nullity and may be so held in any court when it becomes material to the interest of the parties to consider it.' Civil Code (1910), section 5964. ``A void judgment is in reality no judgment at all. It is a mere nullity. It is attended by none of the consequences of a valid adjudication, nor is it entitled to the respect accorded to one. It can neither affect, impair, nor create rights. As to the person against whom it professes to be rendered, it binds him in no degree whatever, it has no effect as a lien upon his property, it does not raise an estoppel against him. As to the person in whose favor it professes to be, it places him in no better position than he occupied before; it gives him no new right, but an attempt to enforce it will place him in peril. As to third persons, it can neither be a source of title nor an impediment in the way of enforcing their claims. It is not necessary to take any steps to have it reversed, vacated, or set aside. But whenever it is brought up against the party, he may assail its pretensions and show its worthlessness. It is supported by no presumptions, and may be impeached in any action, direct or collateral.' Black on Judgments, section 170." See Carter v.Atkinson, 12 Ga. App. 390 (3) (77 S.E. 370); Walker v.Ful-Kalb Inc., 181 Ga. 563, 573 (183 S.E. 776); Jones v.Jones, 181 Ga. 747 (184 S.E. 271).

From another view which is easily inferable from this record, the orders and judgments granting to the plaintiff the right to practice law and the procuring of a license thereunder are tainted with fraud. In Crawford v. Williams, 149 Ga. 126,132 (99 S.E. 378), the Supreme Court, quoting from Smith v.Cuyler, 78 Ga. 654, 660 (3 S.E. 406), said: "Fraud is not a thing that can stand, even when robed in a judgment." From this situation it follows that the plaintiff had never legally been authorized to practice law, and there was no necessity to bring a disbarment proceeding. He stands now where he stood when he made his application for a license — that is, to show to the court that he has the character which the law requires of one to become a practitioner at the bar. Surely the plaintiff has not been harmed. The doors of entrance to the bar of Georgia are still open to him, and if he can measure up to the requirements he will be admitted. He should not desire to refrain from this under the could with which the inferences of this record envelop him.

The court did not err in sustaining the demurrer for any of the reasons assigned.

Judgment affirmed. Broyles, C. J., and MacIntyre, J.,concur.