Maxey v. Polk County District Court

Salinger, J.

1. courts : jurisdiction : essential elemnts: attorney and client. — I. On the 9th day of February, 1912, a decree was entered in the Polk County district court, which disbarred the plaintiff from the practice of law as an attorney in the state of Iowa. Subsequently, plaintiff applied to said court to modify said decree. The plaintiff prayed “that, upon the hearing of this petition, the court cancel and suspend the order and decree heretofore entered herein, and that defendant be restored to all of his prior rights as an attorney -at law, and for such other and further relief as to the court may seem just and equitable in the premises.” After hearing, an order was entered on July 13, 1915:

“That said original decree of disbarment be and the same is hereby set aside and annulled,” and “that if, in the future, the defendant desires to be reinstated in the practice of law within the state of Iowa, said reinstatement shall be subject to the further orders of this court, upon application and notice to be presented by the defendant in person.”

The plaintiff thought it was necessary to obtain some change of this order of modification, to meet the rules concerning admission of attorneys within the state of California, wherein he had passed the bar examination, and was seeking admission. To obtain a second modification, he presented to one of the defendants an order to be signed, wherein he treated the second application as an effort to obtain a modification of .the original decree of disbarment. This original decree was an absolute disbarment, disqualifying the plaintiff from practicing law anywhere. It will help to a clear understanding of what is now before us to display, side by side, the modification entered on July 13, 1915, and the order which plaintiff sought by his second application :

“That said original decree of disbarment be and the same is hereby set aside and annulled. * * *

“If, in the future, the defendant desires to be reinstated in the practice of law within the state of Iowa, said reinstatement shall be subject to the further orders of this court, upon application and notice to be presented by the defendant in person.”

“That the said original decree' entered in this case, by the terms of which the said defendant was disbaried as a practicing attorney in this court, be and the same is hereby set aside and annulled.”

And that “the matter of defendant’s re-entering the practice of law in Iowa be left open for his personal application and -appearance.”

It is most difficult to find any substantial difference between what is sought in the last application and the modification already obtained. It seems to us that the second application merely asked an immaterial change in the entry which had already modified the original decree of disbarment. It is true the plaintiff seemed to think that he could have no modification of the modification without applying to have the original decree modified. The most that this worked is that he made application to have a change made in the original decree as already amended. No matter what he thought, if he asked a change at all, it is the one embodied in that prayer he made for the second change, which we have already set forth. The defendants neither granted nor denied this second application. Instead, they decreed, Avithout further notice or appearance by plaintiff, “that tlie order entered in this court in-the above cause on duly 13, 1915, be vacated and set aside,” and that “the original order, as made under date of February 10, 1912, be re-established as the order of this court * * and that the application of the defendant for any modification of said original decree be and the samé is hereby denied.”

2. certiorari: proceedings and determination: review: scope and extent. 3. Certiorari : nature and grounds: jurisdicial proceedings: want of jurisdiction. Petitioner seems to be of opinion now that, among other things, the merits of his 70 second application are before ns. He cites In re King, 54 Ohio St. 415 (43 N. E. 686) ; In re Newton, 27 Mont. 182 (70 Pac. 510) ; and In re Treadwell, 114 Cal. 24 (45 Pac. 993). The utmost these demonstrate is that defendants would not have been interfered with if they had granted the prayer of this petitioner — that such a decision would not have been against ihe evidence. We have no such question before us on certiorari.. What we have is whether these defendants exceeded their authority, and thus acted illegally. Had they either granted or denied the second application, the action would not have been interfered with in this proceeding. But, as seen, they did neither. A decree operating to disbar plaintiff from practicing anywhere was entered against'him at one time.. A second decree was entered, which, in effect, cancelled! the disbarment, except in so far as it affected practicing within the state of Iowa. As to removing the bar for that jurisdiction, the imatter was left open. The second decree was as sacred as the first. Then comes plaintiff, and says he desires the original decree modified. But this application shows that, if he is seeking any change, it is in the second decree. Thereupon, without more, the defendants did what, in effect, amounted to a cancellation of this second decree obtained. No application for such a change as that was before the court, and we are constrained to hold that, until there be one. and plaintiff given an opportunity to regigt an application to take the decree of July .13, .19.15, from him, the defendants acted beyond their authority, and therefore illegally, in cancelling that second decree. This, and that certiorari will lie, is settled in principle by Haddick v. District Court of Polk County, 160 Iowa 187. We must and do order that the action in review be — Annulled.

Preston, C. J., Evans and Gaynor, JJ., concur.