In re Eaton

74 N.W. 870 | N.D. | 1898

Wallin, J.

This is a disbarment proceeding, brought under section 434 of the Revised Codes. The District Court entered a judgment suspending the accused from practice as an attorney-at-law. This court, on appeal reversed the judgment of the District Court, and directed the court below to enter a judgment reversing its former judgment, and dismissing the proceeding. See In re Eaton, 4 N. D. 514, 62 N. W. Rep. 597. The record now before us discloses the following facts: In October, 1895, and pursuant to the direction of this court so to do, an order was made and entered in the District Court annulling said judgment of suspension, and dismissing the proceedings. This order is silent as to the costs of the proceeding. Later, and in January, 1896, the matter of the. costs was brought before the District Court, and was disposed of by an order as follows: “The order to show cause entered herein on the 30th day of December, A. D. 1895, citing the petitioners in the above entitled proceeding to show cause why the respondent, Robert A. Eaton, should not have his costs and disbursements herein adjusted in his favor and against the petitioners, J. B. Wineman and R. M. Carothers, having come on for hearing before the undersigned trial judge, all parties appearing personally, and the matter herein having been considered, it is now hereby ordered that the application of said respondent for such adjustment be, and the same is hereby, denied.” Thereafter, and in August, A. D. 1896, judgment was entered annulling the judgment of suspension, and dismissing the proceeding; but said judgment gave no costs or disbursements, and was wholly silent as to the costs and disbursements of the proceeding. From the last mentioned judgment, the respondent appeals to this court, and claims here that the court below erred in not giving him a judgment for his costs and disbursements, and this is the sole question involved on this appeal.

Appellant’s contention, briefly stated, is that a disbarment proceeding under the statute, being neither a civil nor a criminal action proper, is necessarily a “special proceeding,” citing Rev. Codes, §§ 5155-5160, and contends further, that, under various provisions of.¡the code, costs and disbursements are awarded to the successful litigant in a special proceeding. Our first view of the case was (conceding that a disbarment proceeding is a special proceeding, within the meaning of the code) that defendant had lost his right to have the matter of the costs reviewed in this court by failing to appeal from the order of the District Court refusing to allow him his costs. The judgment as entered failing to embody any adjudication as to costs, we were led into holding that the question was not raised on the record. Further investigation has led us to change our views in this respect. We now think that the order disallowing the costs was in its nature an order requiring a judgment to be entered of a particular characacter, viz. a judgment without costs, and such a judgment was entered. A mere order for judgment is nonappealable, while, on the contrary, an order for judgment is reviewable on appeal from the judgment. The order preceding the judgment was not a final order. See Felber v. Railroad Co., 28 Minn. 156, 9 N. W. Rep. 635; Closen v. Allen, 29 Minn. 86, 12 N. W. Rep. 146; Dooly v. Morton, 41 Cal. 439; In re Weber, 4 N. D. 119, 59 N. W. Rep. 523. We are of the opinion that, under the authorities cited, the question of thé right of the respondent to recover the costs and disbursements of the proceeding arises upon the record, and must therefore be disposed of upon its merits.

We have decided to hold that neither costs nor disbursements-can be recovered in a proceeding of this character. It must be conceded, however, that, in a certain broad sense, the contention of the appellant that this proceeding is a “special proceeding” is correct. It is special, in that it is neither a civil action nor a criminal action, but is, on the contrary, a remedy in court, which is readily distinguishable from both, not only with respect to the objects sought in actions, but as well with respect to the procedure which governs in actions. For purposes of general classification, such as was attempted to be made by the code' makers in the sections thereof already cited, this proceeding is certainly a special proceeding. But while the point is somewhat embarrassing, and not wholly free from doubt, we are inclined to hold, following precedents already made by this court, that it was not the legislative purpose, in making the general classification of remedies in court, to settle all details of practice and procedure in such purely statutory proceedings as the legislature might have authorized or might thereafter see fit to,authorize, regardless of their objects or character. Doubtless it was the legislative purpose, by this broad classification, to embrace all special proceedings proper; i. e. such proceedings as gave remedies in court through the agency of the remedial writs which had been adopted at the common law, and had, when the code was adopted, a recognized status and name in court procedure, and which were then well known to the profession under the name of special proceedings. These remedial writs with their statutory modifications, were clearly in the mind of the code makers, and are, by universal consent, governed by the provisions of the Code of Civil Procedure, so far as the code attempts to deal with the same, including the regulations governing costs, disbursements, and appeals. But this court held in State v. Davis, 2 N. D. 461, 51 N. W. Rep. 942, that a proceeding for the punishment of a criminal contempt, which is clearly a remedy had in court, and which is certainly not an action, either civil or criminal, could not be classed, with “special proceedings” for the purposes of an appeal to this court from a final order punishing the accused for a criminal contempt. See, also, Myrick v. McCabe, 5 N. D. 422, 67 N. W. Rep. 143. The Davis case is a precedent which commits this court to the theory that a remedial proceeding in court, which is neither a civil nor a criminal action, need not necessarily be classed as a special proceeding for all purposes. We are still of the opinion that this theory, if maintained, will tend to promote the orderly administration of the law, and thereby promote the ends of justice. Under the statute, this proceeding may be commenced either by the direction of the court, or upon the motion of any individual without the direction or permission of the court. If the court directs an attorney to institute the proceeding, it possesses the power to compel obedience to the order; and, whether an attorney acts upon his own motion or pursuant to an order of court, there is no provision of law whereby he can be compensated for his services. In theory, the attorney who prosecutes acts as impartially and disinterestedly as the judge who presides in such a proceeding; and both act wholly for a public object, and that object is the purification of the bar and the protection of the court and the public from the evil consequences sure to result from allowing an unworthy person to exercise the official functions of an attorney-at-law. The legislature, whether wisely or not, has not seen fit to provide in this statute for the recovery of either costs or disbursements by either side; but it is expressly provided that only the accused can appeal from the judgment. The effect of this is, of course, to prevent the attorney who prosecutes, and against whom costs may be adjudged, from having the merits reviewed for the purpose of showing that the matter was erroneously decided against the prosecution. He would, under this theory, be compelled to pay costs, without the privilege of attempting to show in this court that he was erroneously cast in his suit, and that judgment should have been in his favor. Nor could such prosecutor have the consolation of knowing that his services for .the public good would be compensated out of the public treasury. They are not so compensated. It is, moreover, wholly without precedent in this state to award costs to a person who is unsuccessfully prosecuted for public ends. We think, too, that the legislature, in denying the right of appeal to the prosecution in a disbarment case, has intentionally taken the proceeding out of the category of cases in which costs are awarded, and the right of appeal to both sides is secured. In brief, our conclusion is that, on account of the anomalous and wholly unique character of a disbarment proceeding, costs should not be awarded to either party in the proceeding, in the absence of express legislative authority. There is in this state no such authority.

(74 N. W. Rep. 870.)

The judgment will be affirmed, without costs in this court.

All concur.