*1 1162 reducing judgment thereby $15.76,
еlect to enter a remittitur amount, judgment $159.24; failure to remit or, upon his JJ., Fulbright, concur. trial. will reversed for new Smith stand MARCH, 1936. (2d) 213. P. S. W. In the Matter Noell. Charles 16, Appeals. Opinion filed June 1936. St. Louis Court of Report Special adopted opinion of June Commissioner the Court 1936. of Certiorari denied November 1936. Writ Geo. F. Wise and Ely Luther Smith for informants.
P. H. respondent. Cullen for
No briefs.
DYER, Appeals: S. C. To the St. Louis Court of appointment by- Pursuant tó made in the above matter entitled 5, 1935, undersigned said court on June Dyer, Bernard H. as special commissioner, following report: submits the original
This is an proceeding, court, object in this instituted discipline respondent, which is to Noell, Charles as an at- P. torney at practice law and to disbar him from the in this State.
This day February, was commenced on the 7th 1935.. day, McDonald, Wayne On Thomas F. Ely, Sibley, Grover C. duly Howard G. Cook IT. Liberman, attorneys and Samuel licensed at law and City members of the bar of the Louis, representing of St. themselves to be the Committee Grievances the Bar Association Louis, of St. court, as informants to the filed herein their informa- tion, petition or for disbarment. petition
This respondent states that is, Charles P. Noell and at all times mentioned, was, a duly attorney law, engaged licensed profession of his attorney аs such at law in courts of this State. during years
That 1922 inclusive, respondent to paid persons employed by to corporations various information persons, injuries about by employees sustained of said corporations in to respondent order enable approach to injured such employees to solicit them employ respondent to bring to suits in their against behalf employers their damages; respondent many persons solicit employ to him against to file employ- suits their ers, and as a result solicitation, of such a number of such em- ployees employ respоndent, did so did file such suits as attorney; their approximately thirty- out per gross five cent of his income for purposes, such and secured busi- ness payments; such that respondent, during years, paid said employee to companies railroad to obtain private for him and confidential records from employers’ their offices and informa- tion from private and confidential records for purpose being used, used, by and was respondent against railroads; various that said information and said records were so obtained without the knowledge or consent of employers, said аnd that giving of such information employees was a violation of their duty to their employers, as well knew. petition Informants’ allegations states peti- in the tion certain proceedings based place which took before the United States Board of Tax Appeals, respondent, wherein Charles P. Noell, as petitioner, appealing for a deduction from his taxable proceed- inclusive, in which income set forth the purporting petition sworn ings he filed certain testified disbar, and also petition in informants’ allegations made behalf, caused his own as a witness orally statements to certain as one Brown in his behalf to be made statements oral certain state- much said oral the said sworn representative, the basis of Upon herein. being out in the information ments set much repetition and with good deal allegations (stated with P. charge Charles form), informants argument toas profession in his malpractice Noell, guilty of a misdemeanor guilty of the offense he had been attorney law, and also that as an attorneys at law. not licensed dividing fees with removed is that prayer informants’ State. practice of law in this information, as disclosed Respondent’s defense *3 in- allegations of the general by answer, first, is a denial his legal informants to second, capacity of ; a denial of the formation sufficiency of the third, challenge to the proceeding; a institute this disbarment, grounds for allegations the information to constitute of judicata, fourth, plea of res ad demurrer, were, petition; as it to against respondent in the Circuit charges preferred in charges substantially of Louis in in same Court St. which discharged, now and in and he were made which was petition; this judgment prosecution as a bar to the of pleads said point fifth, complained are remote in’ the acts so stale and aas laches, respondent pleads as to and laches time constitute by sixth, this the Stat- action; bar this action barred any State, making ute of Limitations of this without reference specific limitations; seventh, men- period that at the of time state good in since, respondent tioned times and all has any guilty engaged faith has of law and not been malpractice, professional fraud or misdemeanor whatsoever in capacity. specified
Your up commissioner takes these several defenses they consideratiоn in the order stated. petitioners evidence offered and was heard
by your commissioner, reporter ap- was taken down a shorthand pointed for that purpose this parties, with the of both and consent evidence was transcribed printed and has and filed. At been conclusion taking made, arguments of testimony, oral and it was agreed might later; consented and filed briefs time was allowed for that purpose. These have briefs likewise printed filed, your and the case was submitted to commissioner for his findings evidence, fact and upon of law conclusions arguments and briefs.
As a plеading, argument informants’ petition contains much fact, also forth mat- many conclusions, both as to law and sets matters, evidence, stripped of such it is the view but even ters charges respondent paid your that the commissioner years 1922-1925, inclusive, substantial to unnamed obtaining money purpose employment as an at- for the torney thereby employment. Inform- law, did obtain such charge employees ants employers private to furnish railroad and confidential belonging employers, information from records to said infor- being purpose enabling respondent, mation for the and was used by respondent, procure employment by injured employees dependents against or their to institute law suits these same railroad employers. As a testifying case, witness in his own behalf ways. that he denied ever used in such Your commissioner considers that the crux of turns ease joined. solution of the issue of faet thus What does the evidence show regard? in that
Respondent his return to Income Tax Division of showing Federal Government taxable income for the 1922 to Thereafter, inclusive. the Commissioner of Internal Revenue had determined that there a deficiency in the amount years, <®£sаid income tax for said deficiency and had issued letters aeeordingly, whereby said commissioner against had assessed re- spondent deficiencies taxes as follows: year 1922, For the ................................$ 581.06 1923, ................................ 1924, ................................ 1925, ................................ 742.26
725.40 261.57 *4 Total, ................$2,310.29 Respondent appealed from this by action the Commissioner of In- ternal Revenue to the Board of Tax Appeals. appeal This was in writing, signed by respondent’s counsel, and by sworn to respondent hearing himself. A upon appeal this was conducted before the Board Appeals, of Tax Louis, St. Missouri, April 14, on 1930, at which hearing, respondent the Charles P. appeared Noell in his own be- half was also represented by and one James Brown. At this hear- ing, respondent made statements relative to the issues pending on Appeal, the having and after made such statements, was sworn and testified as a witness his own behalf. respondent After had testified as witness, both in upon chief and cross-examination, called one Brown, James representative to make a statement in his behalf before said Board of Tax Appeals. These by statements by made Brown, and and also the testimony given by respondent, were by taken a reporter a transcript of the whole proceeding was by offered informants in allegations information. support case to the disbarment
Upon testimony offered, ease. thus informants rested their Appeals transcript proceedings
This Board of Tax before the shows that entitled attempting prove to that he was gross years question to certain deductions from his income for the by ground that out paid on said deductions were amounts The Gov- taxpayer (respondent) expense. of business account contending taxpayer ernment was that the was not entitled to deductions, ground showing on the claimed there was nо Law) Tax (within to the the Federal Income claimed effect payments necessary expenses. were business by appeal matter, signed his formal written tax counsel admittedly respondent, respondent sworn to fact, which, true, makes numerous statements that re- show spondent had, during 1925, inclusive, paid and used to attorney sums of an at law. secure his business as argumentative. These statements of fact were in form both direct and As said, speaking allegedly issúed statements, direct he of checks payment expenses payable cash: business proceeds “The of his were used connection with conduct proceeds That some of of checks issued and business.” persons securing paying used in means of cash “were business corporations against corporations suits employed various which always necessary pay prosecuted, and it was ’’ cash. Argumentative statements were made as follows: requires to secure this character of “It claims. legal taxpayer
“To character of business in which the secure necessary specializes spend approximately that it is 35% legal taxpayer’s gross in order to secure such income businеss.” Respondent proceeding' in. this disbarment he testified when signed appeal paper foregoing which the statements are copied, paper signing he did not know he was that the contained said statements; signed reading without either he appeal separate declared, upon oath, or the affidavit in he he familiar read the with statements therein contained, that the facts true. therein stated are He testified that prepared by appeal repre- and the affidavit sentative, Brown, brought being Mr. busy, who it to signed reading it; thought it he it was some without formal *5 matter, aрpeal; like an affidavit for that had he it read over and. money spent paying persons get seen the he had statements that right business, stopped there, my he have would “because whole testimony appeal just.to contrary.” that before tax board was testimony respondent’s
If the appeal whole of before the tax board contrary of just to the these statements fact been had in finding justified in your would feel appeal, commissioner petition appeal know that contents that not it. A careful and con- said that he had read although his affidavit reading respondent’s testimony before of the whole of siderate just testimony was not appeal tax board discloses commissioner, fact, by your contrary as read of said statements. being contrary statements, to said testimony, instead of testimony statements. That was to the effect consistent with said least claiming money for he spent the sums of which was gross in connection with his law business. from his income deductions Appeals, representing Tax to the Board of opening In his statement himself, respondent said: nothing way there has allowed here in the so . . frequently pay employees have expenses,
business . . . and we things that, like ... we of railroads for interstate records did, they might could make a record of that because we lose not ’’ positions companies. their with the testifying Appeals, As a sworn witness before the Board of Tax respondent said: I point (cash checks) your Honor,
“The want to them show personal expenses, representing everything is that is all of the here way personal expenses; and household that therefore these expenses keeping money cash was our method of track of spent in business.
“I would have no business—would handle business, if we did large spending money, do it sums of as represented by not those cheeks, cash many; and the has been were . . . “. . . I did not dream that cash these cheeks would not be ’’ way. as expenses, considered business where it was used in that my “. . necessary . foundation is cash spent whole to be checks ” my my I business; spend ceases; when cease to it business . . . conclusively appears given from the oral testimony by respond- hearing Appeals spent ent before the Board of Tax that he had sums of business; connection with his law he have spent large would had no business if money; spend money, when he ceased his business ceases. Such preclude any finding statements testimony given by re- spondent at the before the Board of Tax Appeals “just contrary” to the statements set forth in the ap- only peal. respect There is testimony one which this oral does not exactly with the statements coincide appeal. distinguish The oral statements did not to whether sums spent to obtain business or spent prosecution him in of the business after it had been otherwise n With obtained. the fact to the established your satisfaction of com- *6 money respondent
missioner that in connection spent sum testimony respondent business, by the with his law so established given matter, step himself on the tax the is to de- the next money, thereof, spent part termine whether this or a to obtain Respondent’s petition appeal in the business—to obtain cases. for specific tax matter is spent to the that he sums of effect securing business. denies, however, He that he these statements made knowingly if he had known that statements were con- —that tained in petition right his for he appeal stopped would have there. resolving Your sees pursue commissioner no other course to question guided by corroborating testimony of faсt but to be the as testimony may guide in the one direction or the other. respondent
When found himself his tax confronted with income problem relating his incomp years 1922-25, taxable for in- clusive, employed he as his counsel and adviser in that matter one Brown. An appeal to the Appeals upon. Board of Tax was decided prepared Brown petition appeal. pre- for is not to preparation sumed that in the of this Brown obtained his knowledge pertinent of the facts any to the ease other source ’ respondent than from himself. Neither is there to that ef- evidеnce fect. Whatever Brown learned about the case submitted to him respondent. he learned from There is no evidence that attempted Brown to make a fictitious case. In light experi- ence and of all the testimony case, in the we are bound to believe that tq Brown undertook present before the Board of Appeals Tax case, only case, bfm. the client had furnished to addition to the statements petition made in the appeal for the tax addition testimony to the oral at the tax hear- ing, respondent introduced Brown to the of Tax Appeals Bоard as representative called him to make a statement in his behalf before the Brown board.. undertook to do so. He made statement before the board in which he said: receives, “He secures, or rather through.information business usually received through from or employee an company reciprocates pays employee, general thing, receiving that information, in the form of a commission.” course, may Of what Brown have stated in is not upon respondent conclusive in this proceeding, and we do not hold bound here do, statement. We however, considеr what Brown said on that occasion as testimony admissible made presence in the of strongly corroborating charge that. spent had. to obtain law business. That statement Brown that occasion was but an extension of-the previqusly statement respondent’s petition appeal and has great weight to show that respondent spent moneys to obtain and also have, business knowledge. of the con- signed affidavit to the petition appeal when he tents declaring he had read and was therein that its statements. familiar with find- support matters in this record that
There are additional *7 ing appeal. this that did knоw contents of by respondent. In his We refer to the obvious contradictions Appeals, explicitly he testimony the Board of Tax testified before paid money in with his law that had out connection he ground claiming that he that he was entitled to business. On de- payments gross of ductions in amounts from this income. fact, of purpose In there was no other before Board ground. of Tax but to obtain Appeals these deductions that case, respondent At the trial of the of instant testified that the sums money represented by the cash checks which had testified were used in connection with his law businеss in were used fact ways altogether purposes they different were used in —that by not entitled him to the did deductions claimed him. admitted by taken position respondent with cash reference these checks Appeals before the Board of Tax cannot with po- be reconciled by sition him taken with reference those same' cash checks in this ease. Before Tax Appeals, respondent the Board of was con- tending, supporting by and this contention his testimony, own that which, he was entitled to expenses allowed,- deductions as business by would have his reduced income tаx the amount of In $2310.29. present case, moneys spent testified that said were for purposes obviously did not entitle him to says these reductions. He now moneys that he spent, upon dependents these pleasure. and testifying When before the of Appeals, Board Tax attempted showing amounts money, entirety, in their with, paid respondent’s connection law business. In hearing, it is. to be attempted shown that same large amounts money, excepting trifling portion thereof, paid in sup- out port of dependents upon pleasure. your and What commissioner believes, apd testimony finds from thе is. that pay did out dependents at times support but that the averments appeal the tax paid moneys case that he out obtain, secure and are true. business finding your It is therefore the commissioner in this case that respondent, during years 1922, 1923, 1925, yet 1924 and was and attorney is an duly at law, practice licensed and admitted to and engaged in the of his profession attorney as an at law in the courts of State; during years 1922, said 1923, 1924 and during and each said paid un- named of money, sums undetermined, amounts purpose for the obtaining and securing employment as an attorney to institute suits in the courts of this State elsewhere, and by and use employment, and obtain such did out,
moneys so prosecute and suits obtained, institute so employment acting upon acts, respond- elsewhere; said this State the courts unprofessional illegal, improper guilty of conduct has been ent conduct, respondent acts attorney law, and as an professional in his malpractice guilty of a misdemetanor has been meaning of section law, attorney at within as an capacity, Missouri, 1929. Statutes Revised in this case that informants alleged defense Respondent’s aban- proceedings seems tо have to institute legal capacity But brief. argued in his least, is At it respondent. doned by a filed has been this information not, appears that it abandoned or properly or- members of a informants party proper attorneys to institute law, qualified duly licensed ganized body of knowledge that such common of this character. of this character committees have been instituted proceedings fact, they seem upheld. and have been of this State the courts *8 questioned. have been not even to operate must held to of rules court Respondent contends that Sparrow, In re recent case only. As we understand the prospectively character, in law a case of 401, such is not the (2d) 90 W. S. by 154, Register, 248 Mo. cited Alton v. as cases by given retrospective a effect must not be holding made that rules relating adop- to abstracts filed before the them to a case applying proceeding. to a disbarment applicability rule, have tion of the adjudicata', strenuously upon insists defense of res Respondent against respondent preferred in the Circuit charges in were Court 1924, substantially in same City the of St. Louis in which the of made, charges against respondent as here were was, trial, acquitted in that case. As understand this con- upon we although respondent, it is that in disbar- part tention on of the the no reference was made to the identical proceeding ment referred to specified, yet obtain cases as here it was expenditures of respondent in which the whole of his proceeding a to disbar conduct attorney appropriate investigation, was an matter for as an they alleged time, at the and that if the facts here existed could have they brought forward, brought forward, been and if not are neverthе- judgment less as much involved in the rendered the end of the they proceedings though specifically as had been included. is argued against splitting rule of action applicable that the causes is here. ordinary
If this were a cause of action in the usual or sense—if it adversary proceeding, were an if it shown that were matters the substantially in controversy the same as those which in- in previous parties, might volved a trial the then such rule between properly subsequent proceeding. a in be utilized as defense the As case, the In re supra, quoting from Sparrow, of In re in the ease рroceeding (2d)W. a disbarment Richards, 333 Mo. 63 S. generis, an criminal, sui action, proceeding but a "an civil is not object of the the by the of conduct of its officers investigation court protection of offender, the the punishment but case, The record of the introduced evidence court.” investigation case, an of the same matters as under was not hold, investigation hold, feel bound we do here, and as we investigation proceeding was not foreclosed 1924. Moreover, splitting was no a cause of action. it is shown There investigation present covered that at least of the acts some filing of 1924. proceeding not exist at the disbarment So investigation respondent’s conduct here much of acts and under as year point transpired subsequent 1925 was of time to proceedings matters referred to in the 1924. ground laches, ground further on Respondent defends that this was not instituted until time so remote from a complained that, the dates occurrences of as as a matter of ought law, proceeding. this court not to entertain the Equity, is a doctrine upon Laches established Courts of based petitioner delayed if a has idea that commencement оf his cause has, until lapse action such time as that the defendant time, opportunity lost what has been his to make his defense in the complained of, equity conscience, matter a court court will petitioner not allow the prosecute advantage his case thus take of defendant. Laches is a Ordinarily, defense based facts. these facts which prevented by would show defendant lapse producing of time from which, shown, facts would constitute defense, pleaded should be an answer. It could be that facts appear of petitioner’s complaint, give fаce sufficient to rise to *9 the application ease, of doctrine laches. In a demurrer might suffice. In hand, the now at upon case relies a invoking in demurrer his of defense laches. pleading instant The is legal denominated an answer, but its effect is that of a demurrer. merely says It complained that the acts of were committed in 1922- petition 25 and the February 7, was not filed until 1935, "and the charges contained in are so and remote point stale in of as to laches, time constitute pleads laches as a bar ’’ prosecution to the of this action. find nothing ease, We in way this either pleading of or evidence showing that defendant, by reason lapse time, of of pre- had been from producing vented in evidence which, facts if produced, would have a charges defense to the. in the disbarment of case. situation, this In such a we find that the defense of laches application has no here. pleaded
As to that investigation defense this is barred 1172 specified Statute of to no are directed Limitations, of we Statute of action in the before, is not a cause As said Limitations. seeking redress in his party some ordinary that one is sense or
usual position to is in If against party. another behalf own appear that Limitations, then it would upon some Statute defend to some at which such stat- point to date respondent-should be able run started to may to run. be said the statute It ute started There is no that in this case? action When was accrued. when knowledge knowledge of or means that informants evidence money expenditure to reference respondent’s conduct with concurrently themselves. with the transactions law business to obtain re- in that is that beyond gainsaying the case and is one fact There obtaining moneys in law handling used spondent in cash footprints plain' is him. to leave behind business intended so argument was to checks there beyond his method use cash particular story its own about the no written to tell record would money was involved. lie testified in transactions which the amounting $5989; to year of this drew cheeks character 1923, $9275.35, year -1924,$11,780.69; in the year in the year 1925, $10,984.23. He testified that he all tax used business; in this case that he testified he used law substantially support family all of sum of de- business, upon pleasure. If used in his pendents and his own law used, found we can see what the motive as we have that it was identity using That motive was conceal cash checks. We can find for concealment in particular transactions. no motive proceeds support of cash be used to the use family checks where would defendants, paying dues the like. club The informants duty had no pro- instituted this commence this who they knowledge ceeding until had some facts. So far as this concerned, is information accrue until this actions applicable time. If be a Statute of there Limitations a ease- character, person it start to run pleading of this could not while the using every means such statute was at his command to conсeal the against complaint which the him is The facts based. defense of disallowed. the Statute Limitations Respondent in his has cited a brief number cases this and right jurisdictions to the as prop- other which refer erty right approach and in the courts seems have been- right. A protecting property sample type that of of this of case is- Gardner, thought of In Sizer pun- re Mo. 356. weighed property heavily with the loss court on those- ishment more, cases, however, punishment cases. recent it said that is- *10 objective not of case. sort In Sparrow, supra, In case of re it was contеnded that a-rule- promulgated of court after the occurrence of facts which. not based could be there involved were proceeding the disbarment provisions of constitutional be violative enforced, that to do so would liabilities in rights impose deprive respondent of in that it would case, it seems to us that past. In that already respect to transactions say, if a involved, that is to right property had been if avested away the re- taken from right sought to be had been property vested had been the law) punishment or a right practice spondent (the have in that case would object proceeding, the court no such held that However, the court uphold bound to the contention. The court said: matters were involved. conduct, in no past as for being punishment involved
“There against our constitu- procedure offend can court rules of view touching provision post tional ex laws.” facto right property. to test a proceeding hold that this is not a We the law of foregoing findings as to the facts and view your case, commissioner that it is the recommendation of Noell, P. judgment enter Charles suspending court its period of practice from in the courts of this State for a of law years judgment until costs of this two from the date of paid. finding and con- foregoing report, PER of facts CURIAM: The Bernard H. Special Honorable clusions of law of Commissioner Dyer, judgment adopted opinion of this court. order and P. Noell Charles the court is therefore that the license hereby suspended for a State of Missouri is law the period payment of two and until has been this date JJ., concur; McCullen, proceeding. the costs of this Becker and Hostetter, /., sitting. P. Wors, Jr., Appellant, L. Tarlton G. and Midwest W. v.
Charles Development Respond Corporation, Company, Industrial 95 S. (2d) W. 1199. ents. Opinion July Appeals. 1936.
St. Louis filed Court rehearing July 20, 1936. overruled Motion for quashed 1938. November Writ Certiorari