Ex parte Cashin

1. Attorney and Client. Citation to respondent giving reasonable notice is sufficient in disbarment proceedings. In a disbarment proceeding, the statutory requirement (section 3912, Code of 1906 [section 2919, Hemingway’s Code]) that all process be issued and signed by the clerk is not applicable; the proceeding being sui generis, and the court already having jurisdiction of its officers, its attorneys, a citation signed by the judge in vacation which gives reasonable notice is sufficient for jurisdiction to. adjudge disbarment. 3. Attorney and Client. Court may prescribe method of procedure in disbarment' proceedings. Where there is no prescribed method of procedure in disbarment, the court has the judicial power to determine the method, provided always there be given reasonable notice affording opportunity to be heard, and the cause be tried fairly, and without oppression or injustice. 3. Attorney and Client. Thirty days’ notice held to be reasonable and due process in disbarment proceedings. Thirty days’ notice is reasonable, is dw process, and a determination of the issue by the judge in disbarment proceedings is the exercise of judicial'power, and is not a denial of the right of trial by jury.

Appeal from circuit court of Humphreys county. Hon. S. F. Davis, Judge. Proceeding in the circuit court for the disbarment of J. M. Cashin, a member of the bar of Humphreys county. Judgment of disbarment was rendered, and J. M. Cashin appeals. It is' respectfully submitted that the judgment herein is void for lack of jurisdiction of the person of the accused. The proceeding was instituted and the order that I be cited were not made or done by the court upon any information or proceeding of any kind pending in court, but the order was made by the judge in another county in the state, and at a time when the circuit court of Hum-phreys county was not in session. All this appears from the record. In proceedings for the suspension of disbarment of an attorney, the practice is for the court, not a judge, to issue a rule or order upon the attorney, reciting the substance of the information or charges against him, and requiring him. to show cause why he should not be suspended or disbarred. 4 Cyc. 913, and authorities cited in the notes on that page. By section 992, of the Code of 1906, judges in term time and vacation are authorized to issue or order the issuance of certain Avrits, but a writ, notice or citation to an attorney in a disbarment proceeding is not among those writs authorized to be issued by judges in vacation. The powers of judges at Chambers in term and vacation are matters of statutory regulatidn, or are regulated by rules of court. The general rule upon this subject is that' judicial business must be transacted in court, and any transaction of judicial business, out of court must be expressly authorized by Statute. 17 Am. & Eng. Enc. of LaAV (2 Ed.) p. 724. It is a fundamental principle that courts can exercise judicial functions only at such times and places as are fixed by law, and that the judges of courts can enter no orders in vacation except such as are expressly authorized by statute. Blair v. Reading, 99 Ill. 600. Judicial acts of a circuit judge at Chambers must be either acts done out of court in a cause pending in court, or acts which the judge is specially authorized by statute to perform out of court. Streeter v. Baton, 7 Mich. 341. Judge Davis' order to me ivas not in reference to a case then pending in court, and not an order he was authorized by the statute to issue and is therefore entirely void.' Strictly judicial powers can only be vested in certain courts named in the constitution. The circuit courts as courts have such powers, but judges out of court merely as judges cannot exercise them. Toledo, etc., R. R. Go. v. Dunlap, 47 Mich. 456; see also, 23 Cyc. 543. I again ask the attention of the court to the fact that when Judge Davis signed the order on July 15, 1921, there was no proceeding pending in the circuit court of Hum-phreys county, Miss., upon which said order could be based. It is true that the said order recites that said information had been filed in said court, but the record shows that it was not filed until the next day, July 16, 1921, where the conduct of disbarment proceedings is not regulated by the statute, the practice is as stated in the last paragraph on the first page of this brief. State v. Mosher, 103 N. W. 105. See, also, State v. Kirk, 95 Am. Sec. 314. In the case at bar Judge Davis not only issued a writ or order himself which he was not authorized by the statute to issue in any event merely as a judge, but issued that order in reference to a matter which was not then pending in any court. I submit that under the law I ivas not required to pay any attention to such an order. I did not do so. So far as any authority to bind me by such an order is concerned, he had as well have sent a message'by Mr. Jones to come into court and answer the information. I take it that there is no question but that according to law a defendant in any legal proceeding is entitled to the notice prescribed by law; that is to say the notice prescribed by laAV in that particular proceeding, before his rights can be prejudiced by the judgment of any court. Ex Parte Hey-fron, 7 How. 127; Harris v. Connor, 3 S. & M. 87; Sec. 3912, Code of 1906. See opinion of Justice Field in Ex Parte Wall, 107 U. S. 306; Re Sittion, 177 Pac. 555. In view of the fact which I think is clearly established by the authorities that the court below acquired no jurisdiction in this matter, I respectfully submit that the judgment should be reversed and the proceeding dismissed. In presenting this case to the court, it is probably Avell to remind the court of the essential nature of disbarment proceedings. This subject is discussed in 6 C. J., sec. 37, page 580. As to the common-law power of courts to disbar attorneys, 6 C. J., page, 582. In pursuance of its authority, the legislature of Mississippi has enacted a statute on this subject. This statute section 223, of the Mississippi Code of 1906, Avhich is as follow's: “If any attorney or counselor at laAV be in default of record, or otherwise guilty of any deceit, malpractice, or misbehavior, or shall Avilfully violate his duties, he shall be stricken from the roll and disbarred, and his license revoked by any court in Avhich he may practice; and such person shall never after-Avard be permitted to act as an attorney or counselor in any court in this state.” In this case Ave have a judgment of the circuit court, a court which had the right to hear the case, finding the respondent guilty of the conduct denounced in section 223, above quoted. Judgment itself recites all jurisdictional facts, and conclude by disbarring the respondent, which is the only judgment ^hat could be rendered by the court under the section as above quoted, and under the decision of the supreme court of Mississippi in the case of Barber v. State, 72 So. 472. Appellant relies for reversal of this cause on the ground that the information Avas presented to the circuit judge at a time AAdien the Humphreys county conrt was not in session, but while he Avas holding court in Greenville, Mississippi. See Acts and Legislature with reference to time of holding courts, and citation issued at the same time. His contention being that he has never had any legal notice, and for that reason the court did not acquire jurisdiction of his person and the judgment of disbarment is therefore a nullity. He cites in support of this contention, Blair v. Reading, 99 Ill. 600; Streeter v. Raton, 7 Mich. 341; Ry. Go. v. Dunlap, 47 Mich. 456. None of the above cases involve disbarment proceedings. In the Mosher case, 103 N. W. 105, nest cited by him, the court of its own motion on information received from the grand jury entered an order designating three members of the local bar to draw up and file charges against Mosher, and a part of the same order he was required to appear and answer on the first day of said term. The court will notice in this case that the information which permitted the action of the circuit judge was that derived from third parties and not something which happened in open court, which is the distinguishing feature. As in the latter instance, the circuit judge may of his own motion disbar, while in the former, the attorney in default must be notified and have his day in court. The next case cited by counsel is State v. Kirk (Fla.), 95 Am. Dec. 314. This case simply holds that: “Where it is intended to apply to the court to have an attorney disbarred, the proper course of proceeding is to present the evidence relied on to the court, and it will direct a rule to show cause to be entered if a case proper for the action of the court be presented. This mile is served and returned, and the court hears and determines’ the case according to law;” That is exactly what was done in the case at bar. # Courts have an inherent power to disbar attorneys and strike their names from the rolls independent of any statute on the subject. State ex rel. Johnson v. Gebhardt, 87 Mo. App. 572. For other cases to the same effect, see Decennial Edition of the Ann. Digest on Attprneys and Client, Key No. 36. (1) A proceeding to disbar an attorney is neither a civil nor criminal action, but is a proceeding sid generis, the object of Avhich is not the punishment of the offender but the protection of the court. In re Davis, 166 S. W. 341; State V. Reek, 88 Com. 447, L. K. A. 1915H. 663; Re Boicman, 7 Mo. 'App. 567; In re Durant (Conn.), 10 Ann. Cas. 542, citing Barr v. Taylor, 60 Conn. 11, and many other authorities. Appellant seeks in his brief to hold a proceeding of this kind to the same strictness required in criminal and civil cases. Although that is exactly what was done in this case, it is unnecessary. As wag well said in the case of Thacher v. United States, 212 Fed. 806: “Respondent’s error lies in supposing that he is entitled to invoke the strict rules governing indictments and proof in criminal cases. There is no such strictness. No formal charging papers filed in court, preliminary to a rule to show cause are necessary.” In re Brown, 2 Okla. 595; Weeks on Attorneys at Law, 143, and other authorities; Ebbs, 17 Am. Cases 596; Whipple, C. J. In re Mills, 120 Mich. 393; Em Parte Smith, 28 Ind. 47; Fletcher v. Danger-field, 20 Cal. 427; Matter of Ebbs, 17 Am. & Eng. Ann. Cas.; In Re Shepard (Mich.), 67 N. W. 971; Weeks, Attorneys at Law, page 179; Em parte ’Wall, 107 U. S. 265, 27 Law. Ed. 552; Randall v. Brigham, 7 Wall, 523; Ex parte Steinman, 95 Pa. St. 220; Re Woll, 36 Mich. 299; Whipple, In re Mills, 1 Mich. 396. From the above case, the court will readily see that the circuit judge not only had the authority to entertain the information and issue the citation, but it was his imperative duty to immediately do so that the public might be protected and the honor of the profession secured. State v. Ward, 9 Ohio 42; In re Thacher, 190 Fed. 976; Hess v. Conway, 92 Kan. 797, 2 Q. B. 440; Holmes v. Conway, 241 U. S. 630; In re Walhey, 26 Cal. 161. We especially call the court’s attention to the case of Ex parte Steinman and Hensel, reported in 95 Pa., pages 221-225, in its applicability to the case at bar in treating" on the conduct of the respondent as charged in the information in matters that transpired in the presence of the court, and we most respectfully submit that that of itself,. is sufficient authority for an affirmance of this case. In re Sitton, 177 Pac. 155. We submit that the section of the Code with reference to the taking of the testimony does not require the taking of testimony unless specially requested by parties in interest, and it is now too late for him to complain, but on the other hand, his silence in not answering the information creates a presumption of his guilt and removes the possibility of any presumption of his innocence. As was said by Judge Steele in the case of People ex rel. Colorado Bar Association v. Webster, in 6á Pac. 207, 208, as foliows: It was respondent’s duty to explain to the court the entire transaction and to account in detail for the money received from his client. In cases of this character there is no presumption that the respondent is innocent, and unless, the respondent fairly and in detail explains to the court his entire connection with the transaction wherein he is charged with improper conduct, it will be presumed that he is unable to do so. We most repectfully call the court’s attention to the case of, In re Hopkins, 54 Wash. 569, 130 Pac. 805; also 1 Mont. 49 and 52 Pac. 611, and 779; State Board v. Hart, 15 Ann. Cases, 119; Ex Parte Parks, 93 Fed. 415; Phillips v. Bal-langer, 37 App. D. C. 51; State v. Rohrig, 159 I. 736, 139 N. W. 912; United States v. Robinson, 19 Wall. 513, 22 U. S. —, U. S. Law. Ed. 205; In re Macy, 14 L. E. 848, 196 Pac. 1095; Nelson v. Com. of Ky., L. E. A. (N. S.) 16 P. 272, 109 S. W. 337; In.re Reed, L. E. A. (N. S.) 1916F. 394, Note. We see no error in the trial of the court below and request that the case be affirmed.