271 P. 1107 | Cal. Ct. App. | 1928
On December 8, 1924, a judgment was rendered in the respondent court adjudging that the petitioner herein "be suspended and precluded from practicing as an attorney at law or as an attorney or agent of another, in and before all courts . . . in the State of California, . . . and from practicing as an attorney or counsellor at law in any manner . . . for the period of one year from and after December 24, 1924." An appeal was taken from this judgment and still remains undetermined. On July 13, 1927, another accusation was filed by the Los Angeles Bar Association against the petitioner consisting of three causes of action, the first and second counts of which charged that the accused engaged in the practice of law during the period of suspension, and the third count charged the embezzlement of funds belonging to a client of petitioner. This cause went to trial before the respondent judge on June 27, 1928, and after evidence was offered in support of and *37 in opposition to the accusation and only after the cause was reopened for the express purpose the Bar Association offered in evidence the judgment rendered on December 8, 1924. An objection was interposed by the accused and sustained by the court, whereupon the court, after the suggestion had been made that the case be continued, stated: "I may say, as I have said before, that I cannot find anything in the evidence offered by the Bar Association to support the third accusation, which involves in my opinion, acts of moral turpitude. I do think the allegations of the first and second counts of the accusation have been sustained. The amount and the extent of the judgment of the court should be left, I think, until the decision of the appellate court; because if the appellate court finds that the decision should be reversed, then manifestly any decision rendered now would be unjust to the accused. On the other hand, if the decision be affirmed, I see no reason at all why the defendant should not be all the more punished, having in mind the recent decision of the court.
"The matter may be continued as counsel may suggest, with the opportunity to the accused, if the judgment of the appellate court be adverse, to present such character witnesses he may desire for the purpose of diminution of the judgment of the court." And in response to a query of the petitioner whether he understood correctly that judgment was to be in his favor on the third count the court further stated: "And in favor of the Bar Association on the first two. But I am not prepared at this time to sign any such judgment, and I do not think the record should show that a judgment is ordered, because manifestly that would be unsupported by the proof. The view I take of the offer of counsel for the Bar Association, of this judgment roll, is such, that the judgment would be without any support in the evidence, and manifestly would be reversible." The continuance was then ordered.
We have quoted at some length from the record in order to make clear that there is no room for the difference of opinion between counsel concerning the action of the court. It is made manifest from the statements just taken therefrom that the respondent judge, being impressed with the conviction that the judgment-roll was inadmissible, ordered the entire cause continued until after the determination of *38 the appeal, indicating to counsel that when the judgment had become final and admissible in evidence, the judgment would then be in favor of the accused on the third count and adverse to him on the first and second counts.
The petitioner seeks the writ of mandate from this court compelling the respondent court to enter judgment without waiting for a determination of the appeal. His argument in this behalf is that no cause of action existed at the time the charges were filed and, further, that the case was completely tried and the prosecution rested without having proved a cause of action. The respondent, on the other hand, asserts that the court was well within its rights in continuing the cause until the judgment-roll should become admissible. This argument is grounded upon authorities which hold that judgments suspending or disbarring an attorney are self-executing and hence the cause of action had accrued at the time the charges were filed, although the evidence was inadmissible.
[1] We are first then to inquire concerning the character of the judgment and the effect of the appeal therefrom, upon it. The first authority in California involving a judgment of suspension is that of Tyler v. Presley,
"The order disbarring Tyler needs no process to execute it, and it stands unaffected by the writ of error."
And again the court says: "The judgment or order stands as it was rendered, and the effect is to suspend the applicant for the writ in this case from the practice of his profession." Another judgment of suspension was considered in the case of In reGraves,
[2] We are therefore next to consider whether the judgment was admissible in evidence for any purpose. The general rule is not in doubt. It is that "A judgment, in order to be admissible in evidence for the purpose of proving facts therein recited
must be a final judgment in the cause, and if the action in which the judgment is rendered is still pending, necessarily the judgment is not final." (Italics ours.) (In re Blythe,
In California Bank v. Graves,
[3] Proceeding upon the assumption that the judgment was inadmissible the respondent court continued the cause until there should be a determination of the appeal. Except for the fundamental error noted there was nothing improper in this procedure. It is said in Smith v. Smith,
Writ denied.
Works, P.J., and Craig, J., concurred. *42