Depew v. Wichita Retail Credit Ass'n , 141 Kan. 481 ( 1935 )

Smith, J.

(dissenting): I. cannot agree with the opinion of the majority. It is well settled in this state that the proper party to institute an action of this kind is the state on the relation of the county attorney or the attorney-general. (See Bobbitt v. State Highway Comm., 138 Kan. 487, 26 P. 2d 1115, and cases cited.)

This action was not brought under the theory spoken of in the specially concurring opinion. It was clearly brought by the plaintiffs to obtain relief from a situation that was proving costly to them in their practice. The allegations of the petition show that.

The argument that some procedure like this must be approved in order to meet a bad condition does not appeal to me. No reason appears why the action could not have been brought in the name of the state. Similar actions are often brought. (See State, ex rel., v. Perkins, 138 Kan. 899, 28 Pac. 765.)

If this action can be maintained by the plaintiffs under the theory spoken of in the specially concurring opinion, then any lawyer who is displeased with the conduct of one of his brothers at the bar may bring an action against him in the district court. Such a situation would be contraiy to the spirit of R. S. 7-101 and 7-121, which confer on the supreme court the authority to admit attorneys to the bar and to disbar attorneys when their misconduct is brought to its attention. R. S. 7-112 and 7-113 provide the procedure by which misconduct of attorneys shall be brought to the attention of the supreme court. My view of the matter is that a question such as is presented in this case should be litigated in the regular way, that is, in an action brought in the name of the state, on the relation of the county attorney or attorney-general.