In Re Disabarment of West
193 S.E. 134
N.C.
1937
Check Treatment
Stacy, C. J.

There are two methods by which an attorney may be disbarred:

1. The one judicial. Attorney-General v. Gorson, 209 N. C., 320, 183 S. E., 392; Attorney-General v. Winburn, 206 N. C., 923, 175 S. E., 498; In re Stiers, 204 N. C., 48, 167 S. E., 382.

*192 2. The other legislative. In re Parker, 209 N. C., 693, 184 S. E., 532; Committee on Grievances v. Strickland, 200 N. C., 630, 158 S. E., 110.

In the instant case, the legislative method alone has been pursued, and the regularity of the proceeding under the' statute is admitted.

It is not perceived how the respondent can contend, with any hope of success, that his right of trial by jury has been takеn away when the controverted matter has been tried by a jury. At the time of his motion, the jury had been sworn and impaneled, and was then ready to try the case. In re Applicants for License, 143 N. C., 1, 55 S. E., 635.

Nor is it perceived upon what ground the respondent can successfully contend that all prior proceedings were void after he had participated therein, without objection, up to the time of trial in the Superior Court. Compare Board of Medical Examiners v. Gardner, 201 N. C., 123, 159 S. E., 8; S. v. Carroll, 194 N. C., 37, 138 S. E., 339; Mann v. Board of Optometry Examiners, 206 N. C., 853, 175 S. E., 281. The proсeeding partakes of the nature of a civil action, ‍​​​‌​​​‌​​​‌‌​‌‌‌‌​‌​‌​​​​‌​​‌​​​​‌‌‌‌‌​​​​‌‌​‌‌‍rather than that of a criminal prosecution. In re Ebbs, 150 N. C., 44, 63 S. E., 190; 2 R. C. L., 1088. A constitutional right, as well as a statutory one,, may be waived by express consent, by failure to assert it in apt time, or by conduct inconsistent with a purpose to insist upon it. S. v. Hartsfield, 188 N. C., 357, 124 S. E., 629; S. v. Mitchell, 119 N. C., 784, 25 S. E., 783. Compare S. v. Camby, 209 N. C., 50, 182 S. E., 715.

The respondent’s second exception is equally untenable. His motion to strike from the complaint all allegations pertaining to matters oсcurring prior to 1 July¿ 1933, even if meritorious, which is neither conceded nor decided, comes too latе, O. S., 537, and no prejudice has been shown to have resulted from the court’s action thereon. Hosiery Mill v. Hosiery Mills, 198 N. C., 596, 152 S. E., 794; Pemberton v. Greensboro, 203 N. C., 514, 166 S. E., 396; Pucker v. Snider Bros., 211 N. C., 566. All the evidence pertaining to these matters was excluded and withheld from the consideration of the jury. The resрondent has no just cause to complain at the court’s action in this respect. Roller v. McKinney, 159 N. C., 319, 74 S. E., 966.

The respondеnt demurred to the evidence bearing upon the charges in the second class, or those relating tо the Stacy Couser matters, which occurred after the incorporation of the State Bar, and mоved for judgment of nonsuit under the Hinsdale Act, C. S., 567. To ‍​​​‌​​​‌​​​‌‌​‌‌‌‌​‌​‌​​​​‌​​‌​​​​‌‌‌‌‌​​​​‌‌​‌‌‍the overruling of this motion, the respondent excepted and assigns same as error. The ruling is correct. True, the evidence is not all one way. It is conflicting. There is mоre than a scintilla to support the charges. This required its submission to the jury. Diamond v. Service Stores, 211 N. C., 632; Lincoln v. R. R., 207 N. C., 787, 178 S. E., 601. The rule *193 is, that if diverse inferences may reasonably be drawn from tbe evidence, some favorable to tbe plaintiff and others favorable tо tbe defendant, tbe cause should be submitted to tbe jury for final determination. Hobbs v. Mann, 199 N. C., 532, 155 S. E., 163.

Doubtless in recognition of tbe correctness of tbe court’s ruling on tbe motion to nonsuit, tbe respondent has omitted any discussion of tbe exception in bis brief. This renders it unnecessary to recapitulate tbe evidence or to set it out in detail. Its delineation would serve no useful purpose. Tbe exception to its sufficiency is not well taken.

It will be noted that tbe charges falling in tbe first class, or those relating to tbe J. B. Colt Company matters, all of whiсh occurred prior to 1 July, 1933, were eliminated “in deference to tbe opinion of tbe Supreme Court of North Carolina In re Parker, 209 N. C., 693.” While tbe matter may even now be more or less academic, and certainly will in time become entirely so, as tbe probability of tbe question again arising will become increasingly remоte, still it may not be amiss to observe that tbe opinion in tbe Parlcer case, supra, is scarcely authority for tbe deference suggested. That case, like this one, is authority only for what it decides. There, we were interpreting a record. Tbe case was made to turn on tbe insufficiency of tbe evidence to show that tbe act complained of was done by tbe respondent in bis capacity as an attorney. Only one issue was submitted to tbe ‍​​​‌​​​‌​​​‌‌​‌‌‌‌​‌​‌​​​​‌​​‌​​​​‌‌‌‌‌​​​​‌‌​‌‌‍jury. “Not on this record” was tbe answer to tbe inquiry: “Shall tbe respondent be disbarred by tbe statutory method?” This was tbе only question determined. All other matters were either continued in tbe trial court or not decided on аppeal. Likewise, in tbe present case, we are principally concerned with tbe interрretation of tbe record.

Neither tbe Parlcer case, supra, nor this one, is predicated upon any lowering of tbe high standard of cоnduct required of attorneys. This standard is as high in North Carolina as it is elsewhere. In re Applicants for License, Farmer and Duke, 191 N. C., 235, 131 S. E., 661; In re Dillingham, 188 N. C., 162, 124 S. E., 130. It is not after tbe manner of our сourts, however, to deprive a lawyer, any more than anyone else, of bis constitutional guaranties or to revoke bis license without due process of law. In re Stiers, supra; Committee on Grievances v. Strickland, supra. In other words, to borrow an expression from tbe field of sports, before any citizen, lawyer or layman, can bo called out on strikes, tbe ball must be put over tbe plate. Abernethy v. Burns, 210 N. C., 636, 188 S. E., 97; S. c., 206 N. C., 370, 173 S. E., 899. This was tbe bolding in Strickland’s case, supra, in Stiers’ case, supra, in Abernethy’s case, supra, and in Parker’s case, supra. It is tbe just rule applicable alike to all and to which all may repair. It also has ‍​​​‌​​​‌​​​‌‌​‌‌‌‌​‌​‌​​​​‌​​‌​​​​‌‌‌‌‌​​​​‌‌​‌‌‍tbe merit of being easily understood. Hе may run that readeth it. Habakkuk 2:2.

*194 Tbe application of tbe rule to facts properly presentеd resulted in disbarment in each of tbe following cases: Attorney-General v. Gorson, supra (fraud in tbe procurement of license, consisting of false statement and suppressio veri); Attorney-General v. Winburn, supra (conduct unbecoming member of tbe bar, consisting of false statements and suppressio veri); S . v. Harwood, 206 N. C., 87, 173 S. E., 24 (confession in open court to commission of felony); S. v. Hollingsworth, ibid., 739, 175 S. E., 99 (plea of nolo contendere to сharge of false pretense and license voluntarily surrendered; reinstatement denied); McLean v. Johnson, 174 N. C., 345, 93 S. E., 847 (criminal convictions); S. v. Pace, 210 N. C., 255, 186 S. E., 366 (convictiоn of embezzlement; question of disbarment not ‍​​​‌​​​‌​​​‌‌​‌‌‌‌​‌​‌​​​​‌​​‌​​​​‌‌‌‌‌​​​​‌‌​‌‌‍debated, bence not adverted to in report of case).

In tbe absence of any reversible error, wbicb respondent has failed to show, tbe verdict and judgment will be upheld.

No error.