Fletcher v. Daingerfield

20 Cal. 427 | Cal. | 1862

Field, C. J. delivered the opinion of the Court—Cope, J. and Norton, J. concurring.

At a term of the District Court of the Ninth Judicial District, held in the county of Siskiyou, in October, 1860, the relator, who was at the time an attorney and counselor, moved the Court “ for default, and for judgment and assessment of damages ” in a certain action then pending between Boles and Dain, plaintiffs, and Weifenbaeh and Russell, defendants, basing his motion on various grounds; and among others, on the ground that one Cosby, a stranger to the action, had filed an answer, after default of Russell, one of the defendants, which was without verification, and had not been served on the plaintiffs or their attorney; and that Weifenbach, the other defendant, had also filed an answer which had not been served. On the hearing of the motion, it was proved that service of the answers had been made on another attorney and counselor of the Court by the name of Steele, who had been authorized by the relator to accept service of the same and of papers in the action, as the latter was about to absent himself from the county. The relator also admitted that he had given the authority. The Court thereupon made an order reciting the facts and declaring that the relator was guilty of a contempt to the Court and its officers, and adjudged him “ infamous,” and directed that his name be stricken from the roll of practicing attorneys of the Court. This order is brought before us for review.

The Act of March 2d, 1859, amending the Act of 1851 concerning attorneys and counselors at law, does not empower the District Court, or any other Court, to strike an attorney and counselor from the rolls, because the grounds of any motion he may make are not supported by the facts of the case. In the present case, the facts, as recited in the order of the District Court, are not inconsistent with the most perfect professional propriety. It does not appear from them that the relator had any knowledge of the service of the answers on his agent appointed to receive them; and he might very well have supposed that such service had not been made, or he would have been informed of it; and even if he had known of the service, he might have desired and been able to show its illegality. He might have contended, and perhaps successfully, that the authority to his agent to accept service was limited to answers filed within the statutory time. He might have contended also, that the authority delegated expired on his return to the county. And besides, the matter which gave offense might perhaps have been satisfactorily explained, if opportunity had been afforded the relator. Ho such opportunity was afforded, so far as the record discloses. The order appears to have been entered without the Court calling for any explanation from him. “ It is hardly necessary to add,” to use the language of Mr. Justice Bennett, c< that a judgment thus rendered, partaking so strongly of the nature of a criminal proceeding, and so serious in its consequences, cannot be supported.” (People v. Turner, 1 Cal. 150.) “ An attorney,” continues the

same Justice, “ by his admission as such, acquires rights of which he cannot be deprived at the discretion of a Court, any more than a physician of the practice of his profession, a mechanic of the exercise of his trade, or a merchant of the pursuit of his commercial avocations.” (Id. 151.)

That portion of the order of the Court which adjudges the relator infamous, is without precedent and wholly illegal. Ho Court can adjudge any man, whether counselor or layman, infamous. It is true, infamy attaches to a conviction of certain public offenses; but it is the law and not the Court which fixes the taint. The Court only pronounces the judgment which the law authorizes, and the infamy follows. But this is a very different thing from a Court or Judge undertaking—where no felony is charged or indictment found, or trial had—to fix upon an officer of the Court, or upon any other person, the charge of being infamous. No such power belongs to any Court or to any Judge.

The order is reversed and vacated.