State Ex Rel. Morton v. Cave , 359 Mo. 72 ( 1949 )

I do not agree with the principal opinion. It is my view we should determine the case the same as on original appeal as authorized by Art. V, Sec. 10, Cons. 1945. The case was heard de novo by the Kansas City Court of Appeals after the report of its special commissioner, and should now be heard de novo by this court. The fact that Informants, Relators here, did not file a motion for rehearing after the case was heard originally and decided by the Court of Appeals should not bar us from considering the case on its merits. The informants filed a motion in the Court of Appeals that Mason be ordered to pay all the costs instead of just a slight portion of them. After the Court of Appeals denied the motion, we granted certiorari. We did this although the record showed no motion for rehearing had been filed in the Court of Appeals, as ordinarily required by our Rule 2.06. Rule 2.06 further provides that "any case coming to the Supreme Court after having been briefed on the merits in, and decided by, a court of appeals will be finally determined by the Supreme Court the same as on original appeal, whether such case comes to it by certification, transfer or certiorari."

"The failure of Informants to file a motion for rehearing in the Court of Appeals in nowise prejudiced Mason. The purpose of a motion for rehearing is to give the court which heard the case the opportunity first to correct its own errors. The failure to file such a motion did not deny Mason due process of law in the Court of Appeals, and will not in this court even if we determine the case on the merits. The entire record of the case is here before us. The case was argued here on the merits. Additional briefs to those filed in the Court of Appeals have been filed here. They deal with the case fully on the merits.

There is no question about the jurisdiction of this court to determine the case on its merits even though no motion for rehearing was filed in the Court of Appeals. "The final judgment of any circuit court or Court of Appeals in a disbarment proceeding by necessary implication is subject to final review by the Supreme Court." In re Conner, 357 Mo. 270, 207 S.W.2d 492.

A disbarment action under our jurisprudence is a proceeding sui generis. While it is not an adversary proceeding, [55] a respondent must be accorded absolute fair play. But this court should not permit justice to be denied either to a respondent or to the public because of some harmless procedural technicality. "There can be no ``limitation upon the powers of the Supreme Court to govern the conduct of its officers', so long, of course, as due process shall have been accorded." In re Conner, supra.

This court said in Leimer v. Hulse, 352 Mo. 451,178 S.W.2d 335: "This disposes of all questions on the record brought up on the writ of error. However, since this case involves the fitnessof a lawyer to continue his practice and as an officer of thecourt, we will not allow any technicalities to prevent ourconsideration of anything reasonably available which goes to themerits of the case. We have, therefore, decided sua sponte (and by agreement of all parties at the oral argument herein) to make our own further investigation of the matter by ordering sent up from the Circuit Court the transcript therein filed of the 1941 hearing before the Advisory Committee of the Bar Administration. This contains the testimony of all the persons concerned in the specific instances of misconduct charged in the information against Mr. Leimer and his own testimony in explanation of each."

This court in its rules relating to the professional conduct of lawyers has been careful, and properly so, not to tie its own hands in order that it would remain free to govern their conduct in absolute fairness both to them and to the public.

In the preample to Rule 4, the Canons of Ethics, it is stated: "Nothing herein contained shall be construed as a limitation upon the power of the courts to discipline any lawyer for professional misconduct." And in Rule 5, which provides for proceedings in cases of professional misconduct, we find in Rule 5.23: "Nothing in this rule shall be construed as a limitation upon the powers of the Supreme Court to govern the conduct of its officers. . . ." It seems to me that in this case we are setting up a procedural technicality to bar a review on the merits which does not necessarily belong in this type of proceeding.

Since it is my view that we should consider this case de novo and decide it on the merits, I dissent from the decision limiting our review merely to the question of the assessment of costs. In doing so I believe the principal opinion is out of harmony with our recent opinion in In re Conner, supra.