315 Mass. 518 | Mass. | 1944
This is an action of contract brought by the plaintiff to recover for services rendered and money disbursed by him as attorney in fact for the defendant in
All of the requests for rulings of the plaintiff that were denied, and those of the defendant that were granted, relate simply- to the question whether as matter of law the plaintiff in rendering the services in question was engaging in the practice of law without having been duly authorized.
The plaintiff relies upon G. L. c. 221, § 49, in force at the time of the alleged services, which however has since been repealed by St. 1935, c. 346, § 3. General Laws, c. 221, § 49, provided as follows: “Any person of good moral character, unless he has been removed from practice as an attorney under section forty, may manage, prosecute or defend a suit if he is specially authorized by the party for whom he appears, in writing or by personal nomination in open court.” In the instant case the written authorization of the plaintiff to appear for the defendant in her suit against Stone was in the form of a power of attorney under seal, wherein she constituted the plaintiff her “true and lawful attorney in . . . [her] name and stead” to represent her in all matters in her suit against Stone.
General Laws, c. 221, § 49, was first enacted by St. 1789, c. 58. After reciting in its preamble “Whereas it has been represented to this Legislature, that doubts have arisen in
It may be assumed that St. 1935, c. 346, § 3, repealing G. L. c. 221, § 49 (as appearing in the Tercentenary Edition), upon which the plaintiff relies, was enacted by the Legislature by reason of the opinions rendered by this court to the effect that, while it is permissible for the Legislature to prohibit the practice of law by persons other than members of the bar of the Commonwealth, since that “would tend to enhance the effectiveness of the judicial department,” Opinion of the Justices, 289 Mass. 607, 612, no “statute can control the judicial department in the performance of its duty to decide who shall enjoy the privilege of practicing law.” Opinion óf the Justices, 279 Mass. 607, 611. And so, in repealing § 49 of c. 221 and inserting in G. L. (Ter. Ed.) c. 221 the new § 46A, the Legislature did not purport to authorize any person to practise law, but prohibited its practice by individuals not members of the bar of the Commonwealth with certain exceptions relating to members of the bar of other States under certain conditions.
In the State of New York a statute almost identical in terms with G. L. c. 221, § 49, was interpreted literally and held unconstitutional. McKoan v. Devries, 3 Barb. S. C. 196, 200. See Cobb v. Judge of Superior Court of Grand Rapids, 43 Mich. 289, 290-291. In Sherwin-Williams Co. v. J. Mannos & Sons, Inc. 287 Mass. 304, 311, the rulings of the trial judge that the provisions of G. L. c. 221, § 49, were not intended to permit a person not a member of the bar to engage in the general practice of law by obtaining a power of attorney from his client in each case; “that the provisions of this section apply only to the casual employment of a person not a member of the bar; that the Legislature by statutes has provided a system of law setting forth
In the present case there was evidence that the plaintiff has participated in the trial or settlement, under powers of attorney, in two hundred seventy-seven cases, and that he has been trying and settling cases since 1915.
There was no error in the admission of the plaintiff’s petition for admission to the bar together with an affidavit setting forth his experience in legal matters. Their contents were in effect admissions by him.
It is manifest that upon all the evidence the judge was warranted in finding that the services for which the plaintiff seeks recovery were rendered by him in the pursuit of the vocation long engaged in by him of practising law although not a duly qualified member of our bar, and in denying him recovery for his services thus rendered with
There was no error in the action of the judge in changing one of his rulings before reporting the case, and in acting without a hearing thereon. The case had not then passed beyond the control of the judge and, “Even without rehearing, a judge may modify a decision already announced, so long as the case has not passed beyond the power of the court.” Peterson v. Hopson, 306 Mass. 597, 602, and cases cited. DeLuca v. Boston Elevated Railway, 312 Mass. 495, 496.
The admission in evidence of a final decree entered in the Superior Court in the case of Foss v. Graustein, which had been appealed to this court but due to the loss of certain exhibits had not become ripe for entry here, enjoining Graustein (the plaintiff here) from managing, prosecuting or defending, whether under a power of attorney or by personal nomination in open court, any proceeding for any person except himself, was not reversible error. Without this evidence the result reached by the judge must have been the same. See Rathgeber v. Kelley, 299 Mass. 444, 446, and cases cited.
It follows from what we have said that judgment in accordance with the terms of the report is to be entered for the plaintiff in the amount found by the judge.
So ordered.