James v. Brandon

The court properly sustained the general demurrer and dismissed the petition.

DECIDED FEBRUARY 17, 1940. Linton S. James filed a libel suit against Morris Brandon Sr., in which the following allegations were made: "That said defendant caused a certain writing, printed matter, to be published and issued containing certain false statements; a copy of same is attached hereto, marked exhibit A to which the usual leave of reference is prayed; that defendant is a member of a so-called grievance committee appointed by the judges of Fulton superior court. That this plaintiff alleges the appointment of said committee by the court was an ultra-vires act on the part of the said judges and that said committee is illegal in that there is a method and procedure laid down by law in such cases made and provided. That said defendant has not followed this law and that said resolution is in direct reverse of the law; that said publication is made with the purpose of defaming this plaintiff's professional reputation, and calculated to injure him in his profession. Exhibit A: ``Whereas, we find that Linton S. James received from E. M. Irwin the sum of no less than $36, the first $10 of which was to be specifically applied on the indemnity charge of the referee in bankruptcy and that there was no specific understanding as to whether the other was to be applied on bankruptcy costs or on James's fee. That James filed a petition in bankruptcy but failed to use the specific $10 for the purpose for which it was intended. That as a consequence no meeting of the creditors was ever held; the bankrupt was never examined and that in consequence thereof the bankruptcy proceeding was dismissed. That during the pendency of the bankruptcy proceedings numerous notices from the referee in bankruptcy were mailed to the office of Mr. Linton S. James. That subsequent to the filing of the bankruptcy petition in behalf of E. M. Irwin and during the pendency thereof the said Linton S. James accepted employment on behalf of Mrs. E. M. Irwin in a contested divorce proceeding against E. M. Irwin, thereby placing himself in an inconsistent relationship to said E. M. Irwin. Therefore, in view of the foregoing, we recommend that the said Linton S. James be suspended from practice in all courts of Fulton County for a period of sixty days and until reinstated, and that in addition thereto he be required to indemnify the said E. M. Irwin from any and all claims provable in the bankruptcy and scheduled proceeding which heretofore or which hereafter may be asserted against him, and that said Linton S. James not be reinstated until he has shown to the court a compliance with this latter recommendation, and that a copy of the order of suspension, if passed, be furnished to the chief of each court of Fulton County. Further, that upon the expiration of such sixty-day period, the said Linton S. James may make written application for reinstatement which will be considered by the court upon showing a compliance as to indemnifying E. M. Irwin as herein set out.'"

The defendant filed a general demurrer and a special demurrer the ground of which was that the petition failed to aver wherein the statements alleged to have been made concerning the plaintiff were false. The demurrers were sustained and the petition dismissed. To this judgment the plaintiff excepted. 1. On demurrer the petition is to be construed strongly against the plaintiff. It does not allege how or to whom the writing was published and issued, and in view of the allegation that the appointment of the committee was illegal it will be construed to mean that the committee delivered its reports and findings personally to the judges by whom the committee was appointed. There is no allegation in the petition that the writing was filed in the office of the clerk of the court or otherwise published. This construction is required because if the plaintiff chooses to assume a burden not placed upon him by law, namely, that of negativing the defense which he anticipates, he will be deemed to be relying on the charge as construed in connection with the anticipated defense. If such defense is not successfully negatived, the petition is subject to general demurrer. Columbian Mutual Life Insurance Co. v.Carter, 58 Ga. App. 150 (197 S.E. 925). By the Code, § 9-505, the court is given authority to remove an attorney at law on its own motion. It follows that it may do everything reasonably necessary to the exercise of that power. A reasonable incident to the exercise of that power involves the right to investigate the conduct of an attorney whose removal or suspension is under consideration. The personal report to the court of a committee appointed by it to do such investigating is as a privileged as a formal charge filed by the court or other person authorized to do so or as any other judicial proceeding would be, so far as libel is concerned. Since the petition does not allege why the appointment of the committee was illegal, and does not allege a publication otherwise than by a personal delivery of the report to the judges, the action was subject to general demurrer.

Judgment affirmed. Stephens, P. J., and Sutton, J., concur.