No. 11364 | Kan. | Jun 10, 1899
The opinion of the court was delivered by
This is an appeal by William A. Norris from an order of the district court of Saline
Service of this accusation together with a rule to plead thereto was made upon Norris. Upon the rule day he appeared and filed amotion for a change of venue
The case comes to us upon a record made up of the originals of all the papers filed in the case, together' with a translation or copy of the stenographer’s notes of testimony upon the hearing of the motions for change of venue and continuance and upon the hearing of the trial proper. None of the testimony has been brought to us either in the form of a case-made or a bill of exceptions. The various papers composing the record are named and described by the clerk of the district court, and are certified by him to be “the original papers in a certain action pending entitled ‘In the matter of William A. Norris, an attorney at law,’ and all the original papers therein, as the same appear on file, . . . and are all the informations, accusations, pleadings, motions, orders, evidence, judgments and proceedings of whatsoever kind or' nature had therein.” Among the papers thus listed by the clerk and certified by him as “original pa
We are asked to review the evidence with a view to determine its sufficiency to prove the accusations made and to sustain the j udgment of disbarment pronounced, and also to determine from it whether the court erred or abused its discretion in refusing to grant the change of venue and the motion for continuance. Whether the determination of any of these matters involves the consideration of questions of disputed fact is immaterial in the view we have of the disposition to be made of the case. If our attention is challenged merely to controverted matters of fact, we would not be at liberty, under the often enunciated rule, to enter upon their examination. If, however, such is not the case, if the evidence was not conflicting, and if on it no questions other than those of law arise, we are equally powerless to give consideration to it, for the reason that the appellant has not brought it to us in the proper form for review. The statute in relation to the disbarment of attorneys and trials and appeals in such cases as this is chapter 90, General Statutes of 1897. Sections 16 and 18 read as follows :
“ § 16. To the accusation he (the attorney) may plead or demur, and the issues joined thereon shall in all cases be tried by the court, all the evidence being reduced to writing, filed, and preserved.”
“ § 18. In case of a removal or suspension being ordered by the district court an appeal therefrom lies to the supreme court, and all the original papers, together with a transcript of the docket entries, shall thereupon be transferred to the supreme court, to be there considered and finally acted upon. A judgment of acquittal in the district court is final.” (Gen. Stat. 1889, ¶¶ 401, 403.)
At the close of the stenographer’s transcript of testimony the statement is made that “the above and foregoing was all the testimony taken on the trial of the case.” This fact, if it be such, was certified as true by no one except the clerk, who, in the above-quoted certificate, declares that “ said originals are all the accusations, pleadings, motions, orders, evidence, judgments and proceedings of whatsoever kind or nature.” By what authority the clerk certifies to the correctness or completeness of evidence in a case we cannot conceive. Certainly no statute confers such authority. In the preparation of a case-made or bill of exceptions it is correct practice for counsel prepar
An appellate court can review the action of an inferior one only upon the record of the proceedings of the lower tribunal certified as correct by some responsible authority. An appellate court must be positively assured as to what transpired in the inferior one before it can enter upon the consideration of the claims of error made. What evidence was offered and either received or rejected, what rulings were made and what exceptions preserved, what interlocutory proceedings were had, must be exhibited in some formal, authentic and indisputable manner. If the proceedings consist of nothing more than the record proper — that is, the pleadings, process, and judgment— they do not need to be made up and settled •
The mistake of the appellant in this case was in conceiving the evidence, which by section 16, supra, is to be “reduced to writing, filed, and preserved,” as being filed and preserved for purposes of review in that form by this court. It needs but short reflection to discern the error of this view. The statute requires the.evidence to be “filed.” Manifestly this means filed in the court in which the proceeding was had. It likewise requires it when filed to be “preserved.” It is equally manifest that this means preserved in
Upon the point of practice under consideration this case is identical with In re Fleharty, 59 Kan. 776, 53 Pac. 129. However, the statement of facts and the opinion in that .case were quite brief and, perhaps, lacking in clearness. They should have been more amplified in order to a satisfactory understanding of the case, and the law as it was then and is still viewed. As in this case, the record in that one contained no bill of exceptions or case-made, but was made up of what were certified by the clerk to be “ the original papers.” Included among these papers were the stenographer’s transcript of testimony and some documentary evidence which had been identified by witnesses. What was meant by that decision was that such part of the record in an appeal of that character as could only be exhibited to a reviewing court in the form of a bill of exceptions or case-made must be put in that form, and that the clerk’s certificate that the prefixed papers were original papers filed in the cause and not transcripts of records properly made up was not sufficient to bring the case before us for review. What is meant by “original papers” in section 18 of the statute before quoted we did not undertake in the case of Fleharty, and do not now undertake, to determine. It is sufficient for the necessities of both cases to determine that a transcript of evidence introduced
There are therefore withdrawn from our consideration all questions relating to errors predicated upon the testimony in respect to the motions for change of venue and for continuance, and also all questions relating to errors occurring upon the trial, including the question of the sufficiency of the evidence, as a matter of law, to sustain the judgment of disbarment. For the same reason the ruling of the court upon the motion for a new trial cannot be reviewed. There remain therefore for consideration only the rulings upon the demurrer, the refusal of a jury trial, and the denial of the motion for arrest of judgment. The first and last involve the same question and may be considered together. Appellant claims that the derelictions of professional duty charged against him were criminal offenses, and that a prerequisite to the revocation of his license to practice was his trial and conviction by due process of law in the courts. This was not the case. The necessary implications from the statute are to the contrary. Section 13, chapter 90, General Statutes of 1897, reads as follows :
“The following are sufficient causes for such revocation or suspension: (1) When he has been convicted of a felony or of a misdemeanor involving moral turpitude, in either of which cases the record of conviction is sufficient evidence; (2) when he is guilty of a wilful disobedience or violation of the order of the court requiring him to do or forbear an act connected with or in the course of his profession; (3) neglecting or refusing, on demand, to pay over money*658 in his hands, due or belonging to a client; (4) destroying, secreting, fraudulently withdrawing, mutilating or altering any paper or record belonging to the files or records in any action or proceeding ; (5) for the wilful violation of any of the duties of an attorney or counselor.” (Gen. Stat. 1889, ¶ 398.)
By this section it is seen that convictions of felony or of misdemeanor involving moral turpitude are made sufficient cause for revocation of license to practice. By it the record of such conviction is made sufficient evidence upon which to base an order of disbarment. This statute, however, neither by its language nor by its implications makes a record of conviction of an offense involving moral turpitude the only evidence of an attorney's unworthiness to practice. It simply declares that to be sufficient evidence. It provides differently as to some offenses for which conviction has not occurred. • It specifies certain acts involving moral turpitude, and which constitute felonies by other statutory provisions, as sufficient causes for revocation. One of these is neglect by the attorney, on demand, to pay money in his hands belonging to his client. Another is destroying, mutilating or altering files or records in court proceedings. As to these, therefore, no previous conviction is necessary. Another cause for revocation of license enumerated by this section is “the wilful violation of any of the duties of an attorney or counselor.” As to this, even though the act constituted an offense involving moral turpitude, conviction is not required. For this cause the charges in question were brought against the appellant. A reading of section 13 would seem to show that for offenses committed by an attorney in his character as such attorney his license to practice may be revoked without a previous trial or conviction, even though the offenses constitute indictable crimes ;
The fact that some of the acts charged against him were acts of official malfeasance committed in his capacity as county attorney can make no difference. He performed them as an attorney at law — as an official of the court as well as an officer of the county. While we have previously held that a county attorney need not be a duly admitted and licensed member of' the bar (The State v. Swan, ante, p. 461, 56 P. 750" court="Kan." date_filed="1899-04-08" href="https://app.midpage.ai/document/state-v-swan-7891052?utm_source=webapp" opinion_id="7891052">56 Pac. 750), yet, if he be such, he must, in representing the interests of his quasi-corporate client, be governed by those rules of professional couduct under which justice must needs be administered to public as well as to private litigants.
The judgment of the court below will be affirmed.