82 So. 513 | Miss. | 1919
Lead Opinion
delivered the opinion of the court.
The proceedings in this case originated in the first district of Hinds county. S. D. Redmond, appellant, filed a petition in the circuit court reciting therein that by judgment of said court rendered in June, 1915, upon proper proceedings, he was disbarred and forbidden to further practice law in any ■ of the courts of this state. The petition «alleged that since the • order of the court petitioner’s conduct had been above reproach. The petition prayed that the court inquire into the character, conduct, and behavior of petitioner since his disbarment, and for a reinstatement as a practitioner of law.
The county attorney of Hinds county demurred to this petition, assigning these grounds of error, viz.: (1) The court is without jurisdiction in the premises; (2) the court cannot grant the relief prayed; (3) the petitioner is not entitled to the relief prayed. The demurrer was sustained generally,, and petitioner was granted the right to appeal.
The attorney general and the county attortíey in their brief thus state the question for the court’s decision, viz.: “The single question presented by the ease it whether an attorney once disbarred from practicing
Section 223, Code of 1906 (section 200, Hemingway’s Code) is the law of this state touching the disbarment of attorneys át law and is as follows:
“If any attorney or counselor at law be in default of •record, or otherwise guilty of any deceit, malpractice or misbehavior, or shall willfully violate his duties, he shall be stricken from the roll and disbarred, and his license revoked by any court in which he may practice; and such person shall never afterward be permitted to act as an attorney or counselor in any court in this state. ’ ’
Disregarding the verbiage of the statute it gives to any court in which the attorney practices the power to disbar the attorney, and to revoke his license in any court in which he may practice, and the effect of the disbarment is to take from the disbarred attorney the privilege of practicing in any court of this state. The exact language- of the statute is “and such person shall never afterward be permitted to %ct as an attorney or counselor in any court in this state. ’ ’
We have no statute providing for the reinstatement of a disbarred attorney. The counsel for the state contend that section 223 is exclusive, and in terms provides that an attorney at law once disbarred in for ever disbarred.
It is undoubtelly true that as long as the judgment of disbarment stands, the disbarred attorney cannot practice in any of the courts. It is true also that once disbarred, always disbarred? Does the power reside in any tribunal or authority to suspend the sentence and restore the privileges of the attorney?
The courts have universally held that an attorney is an officr of the court. 1 Thornton on Attorney at Law, section 13; 6 Corpus Juris, p. 568.
In the light of the authorities treating disbarments and reinstatements of disbarred attorneys, we will consider section 223, Code of 1906 (section 200, Hemingway’s Code). This statute has to do with disbarment, and does not relate to reinstatement of disbarred attorneys. It provides that disbarment proceedings may be begun in any court of record in which the attorney may practice, and it also provides that when any such court disbars the attorney he will not be permitted to practice in any court of the state. The last clause of the section, if it is to be construed literally, would seem ,,to close the door of hope to disbarred attorney. We think, however, that this clause must mean that so long as the judgment remains unchanged the attorney will not be permitted to appear in the courts of the state. However, as we have already noted, the courts have generally held that the court of original jurisdiction may reopen the case and restore to the lawyer his franchise or privilege, if in the opinion of the court the interests of t]h.e court and the public will be best served by a reinstatement.
This is a judicial question. The executive has no power to commute or pardon, nor does the -legislature possess the power to set aside the court’s order. If the court can give no relief, however -meritorious may be the application, we have a most, anomalous situation. It has been the proud boast of the common law that whenever there is a wrong there is always a remedy.
It has been suggested Laws 1916, chapter 107, creating a state board of law examiners, may have some effect upon the issue here. A careful reading of this law will, we think, demonstrate that the board there
We have become satisfied- that the learned circuit judge was in error when he ruled that he had no power to consider the merits of this petition. If a mistake was made in the first instance, or if the circuit court should be satisfied that appellant’s franchise should be restored, after bearing the evidence, we think he is empowered to act and restore to appellant his privileges as an attorney at law.
The demurrer is overruled, and the cause is remanded for further proceedings.
Reversed and remanded.
Dissenting Opinion
(dissenting).
I am unable to agree with my brethern that the circuit court has jurisdiction to resore a disbarred attorney who is disbarred under the provisions of section 223, Code of 1906 (section 200, Hemingway’s Code). This section reads as follows:
“223. Penalty for Misconduct. If any attorney or counselor at law be in default of record, or otherwise guilty of any deceit, malpractice or misbehavior, or shall willfully violate his duties, he shall be stricken from the roll and disbarred, and his license revoked by any court in which he may practice; and such person shall never afterward be permitted to act as an attorney or counselor in any court in this state.”
It will be noted in this section that the attorney, .for a violation of his duties as an attorney, shall be stricken from the roll and disbarred and his license revoked in any court in which he may practice. So when an attorney is disbarred his license is annulled and ceases to exist. He stands just as though he. never had a license, and if he may be restored at all he would have to begin like any other person seeking a law license. The attorney in question was disbarred in the year
The circuit court has no jurisdiction whatever to license attorneys to practice law, and has not had such jurisdiction for many years. . Prior to the enactment of chapter 107, Laws of 1916, the chancery court had exclusive jurisdiction to examine applicants to practice law. The jurisdiction of the' circuit court as - enumerated in section 156 of the Constitution is stated as follows:
The circuit court shall have original jurisdiction in all matters civil and criminal in this state not vested by this Constitution in some other court', .and such' appellate jurisdiction as shall be prescribed by law.”
Under this . section matters civil means matters of common-law nature. Bell v. West Point, 51 Miss. 262.
The statutory jurisdiction of the circuit court is contained in sections 702 and 703, Code of 1906, (sections
“702. Jurisdiction; G-eneral Enumeration of Subjects. — The circuit, court shall have original jurisdiction in all actions when the principal of the amount in controvérsy exceeds two hundred dollars, and of all other actions and causes, matters and things arising under the Constitution and* laws of this state which are not exclusively cognizable in some other court, and such appellate jurisdiction as prescribed by law; and such court shall have power to hear and determine all prosecutions in the name of the state for treason, felonies, crimes, and' misdemeanors, except such as may be exclusively cognizable before some other court; and said court shall have all the powers, belonging to a court of oyer and terminer and general jail delivery, and may do and perform all other acts properly pertaining to a circuit court of law.
“703. Jurisdiction of Cases Transferred or Bemand-ed to It. — The circuit court shall have jurisdiction of all cases transferred to it by the chancery court or remanded to it by the supreme court. ’ ’
It will be seen from a reading of these sections that no jurisdiction is given, either by the Constitution or by the statutes, to the circuit court over the subject-matter here involved. In text-books it is stated that the jurisdiction to restore an attorney to the practice of law results from the power to admit attorneys to practice. There being no power to admit in the circuit court, and the statute giving jurisdiction to disbar without embracing the power to admit or restore the attorney to practice, necessarily excludes such power.
Prior .to 1857 there was a statutory method of restoring attorneys to the practice of law, but this law was repealed in the enactment of the Code of 1857, since when ho method is provided by any statute on the subject. It seems to me that it is clear from the pro
There are three statutes in the chapter on attorneys and counselors at law bearing on disbarment and qualifications of attorneys. Section 218, Code of 1906 (section 192, Hemingway’s Code) provides that any person convicted of a felony, manslaughter excepted, shall be incapable of obtaining a license to practice law, or, if already licensed, the court in which he was convicted shall enter an order disbarring such convict.
Section 225, Code’of 1906 (section 202, Heingway’s Code) provides for proceedings against an attorney
Section 232 Code of 1906 (section 209, Hemingway’s Code) makes it unlawful for an attorney at law to encourage litigation by any promise or offer to give a valuable consideration as an inducement to have business placed in his hands, etc.
Section 232 Code of 1906 (Section 209, Hemingway’s Code) provides for any violation of the above section the attorney shall be removed and disbarred from acting as an attorney at law. This .section does not provide that the license is revoked and that such person shall never thereafter practice in any court of this state. Reading this last-named section in connection with the sections set out above and in the majority opinion, it appears conclusive to my fhind that the legislature intended to establish a policy under section 223, Code of 1906 (section 200, Hemingway’s Code) forever foreclosing to an attorney guilty of the conduct therein reprobated the privilege of practicing law.
Another reason for disagreeing with the majority is that there is no statute anywhere reserving to the circuit court a control over its judgment after the adjournment of the term at which the judgment is entered. The rule is well recognized that no court has control over its judgment after the ending of the term at which judgments were entered, unless such power be given in some statute.
It is conceded in the brief for the appellant that the judgment of the circuit court disbarring Redmond is
I have no doubt that. the legislature in a proper case, on a conclusive showing of good moral character, would pass an enabling law authorizing a person disbarred to take a new. examination and be readmitted, and that such would be the wisest course to pursue to meet any of the 'great hardships and injustices, pictured in the main opinion, that might result from denying the right to be restored.
' However, we are not concerned with hardships. We are concerned with enforcing a wholesome public policy plainly declared by statute. Under the majority opinion it will be practically impossible to keep crooks out of the profession, because any man intelligent enough to stand the examination can undergo a temporary reformation and delude for a few weeks the public as to his repentance and reformation.
Dissenting Opinion
(dissenting),
The judgment of the court below should be affirmed,, for the reason that an attorney at law who has been disbarred by a court of this state can be again permitted to practice law in this state only by disregarding section 223, Code of 1906 (1 Hemingway’s Code, section 200), which provides that an attorney or counselor at law who has been disbarred “shall never afterward be permitted to act as an attorney or counsel- or in any court in this state.”