Dyche v. Crawford , 183 Kan. 441 ( 1958 )

The opinion of the court was delivered by

Jackson, J.:

The two appeals involving independent cases in the court below were consolidated in this court because they both present the identical question. This opinion will be controlling in both cases.

On May 24, 1957, Leola Gamble Dyche and Cora E. Gamble each filed their petitions and began an action against Harvey S. Crawford as defendant in the district court of Stafford County. Both petitions alleged that the respective plaintiffs had been injured in an automobile accident which was alleged to have occurred in Miami County, and that the respective plaintiffs had suffered injury and damage due to the negligence of defendant Crawford. The accident was alleged to have occurred on October 23, 1955.

Defendant filed a motion for additional time to plead which seems not to have been objected to by counsel for the plaintiffs. On October 24, 1957, one day after the expiration of two years from the time of the accident, defendant filed a motion to strike the petition in each case upon the ground that the provisions of G. S. 1949, 7-104 had not been complied with in that “the person who signed the petition in this cause is a regularly admitted practicing attorney in the courts of record in the State of Missouri with offices at 950 Dierks Building, Kansas City, Missouri . . .”

Each of the petitions had been signed as follows:

“C. William Garver

4121 Brookridge Drive,

Mission, Kansas,

Attorney for Plaintiff.”

On November 25, 1957, plaintiffs’ original attorney requested the clerk of the district court in writing to enter as additional attorneys for the plaintiff in each case the firm of Blackburn, Hampton and Ward of Great Bend, Kansas. Great Bend is of course within the Twentieth Judicial District of this state as is also Stafford County.

On the hearing of the above motions to strike, it was made to appear by stipulation and affidavits that Mr. Garver is admitted to practice law in Missouri; is a member of the integrated Missouri Bar Association; apparently has an office at 950 Dierks Building, Kansas City, Missouri; that Mr. Garver, however, is also a member of the Bar of the state of Kansas, and apparently resides at 4121 Brookridge Drive, Mission, Kansas. It was further shown that Mr. Garver had not registered with the clerk of the district court of Johnson County, in which county Mission is situated, to receive the regularly issued trial dockets of said district court, and that he apparently was not a member of the voluntary Bar Association of Johnson County.

Upon the above facts, the district court sustained the motion to strike the petition in each of the actions. Plaintiffs have appealed from those orders.

We come now to the question of the interpretation of the provisions of G. S. 1949, 7-104. It would appear that the most important portion of that section of the statute in this appeal is the following:

“Any regularly admitted practicing attorney in the courts of record of another state or territory, having professional business in the courts or before any board, department, commission or other administrative tribunal or agency, of this state, may, on motion be admitted to practice for the purpose of said business only, in any of said courts, tribunals or agencies, upon talcing the oath as aforesaid and upon it being made to appear by a written showing filed therein, that he has associated and personally appearing with him in the action, hearing or proceeding an attorney who is a resident of and duly and regularly admitted to practice in the courts of record of this state, . . (Italics supplied.)

The question quite shortly comes down to this, does an attorney who is admitted to practice law in a foreign state appear before the courts of the state of Kansas under the above section, if he also has been admitted to the Bar of this state? It would seem clear that Section 7-104 has no application to lawyers who are admitted to the Bar of the state of Kansas.

A study of the statutes relating to attorneys at law as found in Chapter 7 of G. S. 1949, will show that Section 7-104 is the amended Section 4 of a statute which first appeared in G. S. 1868, Ch. 11, §§ 1 to 12 inclusive. Additional provisions have been provided in some of the sections down through the years, but the general topic of each has remained the same.

G. S. 1868, Ch. 11, § 1, and G. S. 1949, 7-101, both provide that persons admitted to practice law in this state under earlier rules and statutes may continue to practice.

Section 2 of the statute of ninety years ago, and Section 7-102 of today, both provide for the prerequisite learning required of applicants applying for admission to the Bar of this state. Both sections contain words of similar import to the clauses of the present Section 7-102, which read:

“And who satisfies the supreme court of this state that he possesses the requisite ability and learning and that he is of good moral character, may be admitted to practice in all the courts of this state upon taking the oath prescribed.” (Italics supplied.)

Section 3 of the old act and section 7-103 both provide for the regulation of admission by rules of the supreme court.

Section 4, Chapter 11, of G. S. 1868 read:.

“Any practicing attorney of any state or territory, having professional business in either the supreme or district court, may, on motion, be admitted to practice in either of those courts, upon taking the oath aforesaid.”

It will be seen that the old Section 4 of the statute plainly applies to attorneys admitted in another state or territory, and that they were to be allowed to come into the courts of this state “upon taking the oath aforesaid.”

Section 7-104 still begins:

“Any regularly admitted practicing attorney in the courts of record of another state or territory, having professional business in the courts or before any board, department . . . may on motion be admitted to practice for the purpose of said business only, in any of said courts, tribunals or agencies, upon taking the oath as aforesaid . . (Italics supplied.)

Certain additional qualifying words have been added to the statute in ninety years and certain additional safeguards have been added, but it remains clear that the subjects of the section are attorneys at law admitted to practice-in other states, but not admitted to practice in Kansas. Lawyers admitted under Section 4 must take the oath provided in Section 4 of the act, referring to both the original and the modern section. Attorneys regularly admitted to the Bar of this state have taken that oath at the time of admission to the Bar (See Section 7-102, supra), and the provisions of Section 4 for an additional oath would be meaningless, if the section were attempted to be applied to them. Likewise, it must be noticed that in Section 7-102, members of the Bar of this state are licensed “to practice in all the courts of this state.” Similar provisions were found in the old Section 2.

From all of the foregoing, it would appear impossible to apply Section 7-104 to an attorney at law, who has been regularly admitted to the Bar of this state.

Attention has been directed to the cases of Felton v. Rubow, 163 Kan. 82, 179 P. 2d 935; Bradley v. Sudler, 172 Kan. 367, 239 P. 2d 921; and the s^me case upon a second appeal, 174 Kan. 293, 255 P. 2d 650. Able' counsel for both sides readily concede that those decisions do not determine this case now before us. In those cases, the attorney in question had not been admitted to the Bar of Kansas.

In the last mentioned decisions the matter of the location of the particular attorney within the state is considered. It is, of course, important that the attorney be subject to the jurisdiction of the court. In this case, an address within the state was given, and nothing has been shown which would indicate that the attorney could not be reached at that location.

The instant case further differs from those referred to above in that at the time of the order striking the petitions from the files of the district court, counsel resident within the judicial district concerned had become attorneys of record for the plaintiffs in the instant cases. In all of the former cases, the orders striking the petitions were made while the files showed that Section 7-104 had not been complied with. The section reads in part:

“No such court, agency or tribunal shall entertain any action, matter, hearing or proceeding while the same is begun, carried on or maintained in violation of the provisions of this section.” (Italics supplied.)

This question is not necessary for the purposes of the instant appeal, and is not decided at this time.

It has been determined that G. S. 1949, 7-104 does not apply to attorneys at law who are members of the Bar of this state and reside therein. Therefore, the orders of the district court striking the petitions in these cases were erroneous, and they should be reversed.

It is so ordered.