69 So. 576 | Ala. | 1915
Lead Opinion
This is an appeal from a judgment of the circuit court of Tallapoosa county removing and disbarring the appellant from the practice of law in all the courts of this state. The proceeding to disbar him was instituted by the central council of the Alabama State Bar Association. — Code, §§ 2995, 2996. It is prosecuted, as provided by law, in the name of the state; and the solicitor of that circuit represented the state in the prosecution, as the statute directs. — Code, § 3004. The accusation and information on which the judgment of disbarment entered is as follows:
“Comes W. B. Bowling, solicitor of the Fifth judicial circuit, and presents for disbarment Matthew Peters, and does accuse and charge: That the said Matthew Peters is an attorney at law, who was regularly licensed heretofore by and under the laws of Alabama to practice the profession of law in the courts of Alabama, and that he has heretofore at. the time of being licensed taken the oath of an attorney at law prescribed by the laws of the state of Alabama, and since being so licensed has practiced and is now practicing his said profession in Alexander City,, Tallapoosa county, Alabama. That the said Matthew Peters has been guilty of deceit and willful misconduct in his said profession of the law, and that the said deceit and willful misconduct consisted in this: That on, to wit, April 29, 1913, at Alexander City, in said state, while acting under employment as the attorney of one L. H. Brassell to collect from one Morgan D. Jones the indebtedness due on, to wit, five certain promissory notes, the property of said L. H.
“And the state of Alabama, by its solicitor, further charges that the said Matthew Peters has been further guilty of deceit and willful misconduct in his said profession of the law, and that the said deceit and willful misconduct consisted in this: That after having made the collection of the said moneys from the said Morgan D. Jones, as aforesaid, while still acting as an attorney
“And the state of Alabama, by its solicitor further charges that the said Matthew Peters has been further guilty of deceit and willful misconduct in his said profession of the law, and that the said, deceit and willful misconduct consisted in this: That after having made the collection of the said moneys from the said Morgan D. Jones as aforesaid, while still acting as the attorney for the said Brassell, and having still failed to .account to the said Brassell for the said moneys so collected for him, the said Brassell, the said Matthew Peters, in- response to a further inquiry from the said Brassell, and with the further intent to deceive him, and conceal from him the fact of said collection, did on, to wit, September 1, 1913, Avrite and send to him by mail a letter in language as folloAvs: ‘Alexander City, 9/1/1913. Hon. L. H. Brassell, Andalusia, Ala — Dear Sir: Your letter on 29th ult. in regard to Morgan matter to hand and contents noted. . This matter is in court
■ Notice of the accusation, together with a copy of the above-copied information, was served on appellant by •the sheriff, and appropriate return of this service was made to the circuit court. The minute entries in and about the proceedings are as follows:
“State of Alabama v. Matthew Peters, No. 538. March 31, 1914. Motion on file withdrawn by defendant. The defendant having failed or refused to answer the accusation in this case, it is the judgment of the court that the defendant be removed and disbarred from the practice of law in all the courts of the state of Alabama. * * * Judgment against defendant for costs of proceedings.”
“State of Alabama v. Matthew Peters. Disbarment •Proceedings. In Tallapoosa Circuit Court, Spring Term, 1914, March 31, 1914. On the 31st day of March, 1914, comes W. B. Bowling, the solicitor, who prosecutes for the state of Alabama; also comes the defendant in person and by attorney, and the defendant by leave of the court withdraws motion, on file; and the defendant having failed or refused to answer the accusation set forth in this cause, it is thereupon considered, ordered, and adjudged by the court, and it is the judgment of the court, that said Matthew Peters, be and he is hereby removed and disbarred from the practice of law in all the courts of_the state of Alabama. * * * It is further ordered and adjudged by the court that
There is no bill of exceptions; and what has been set out above is all of the record that is at all material to the single inquiry possible of consideration on the record and under the one assignment of error made on the record, viz.: “The court erred in entering judgment disbarring appellant from practicing law in the various courts of this state.”
It affirmatively-appears from the record certified here that the' appellant had full notice of the proceeding, that he appeared in response thereto and filed a motion, and that he withdrew his motion by leave of the court. It further affirmatively appears from the record certified here that the appellant failed or refused to answer the ¿ccusation, thus authorizing and requiring the court, under the mandate of the statute before quoted, to proceed to enter judgment in the premises, without the necessity for the introduction of any evidence.
There being no demurrer or other objection to the pleading, and no bill of exceptions, the only possible question that could be the subject of review on this record is whether the information was sufficient to support the judgment — whether is set forth a charge, invoking the court’s jurisdiction, under Code, § 2992, providing for the removal or suspension of any attorney whu has been guilty of any deceit or willful misconduct in his profession. — Code, § 4143, provides: “No judgment can be arrested, annulled, or set aside, for any matter not previously objected to, if the complaint contain a sub
Code, § 3008, provides: “Either party may appeal to the Supreme Court from any adverse judgment rendered by said circuit court, city court, or court of like jurisdiction, in said proceedings, in the manner now prescribed by law for appeals in civil cases, and may reserve by bill of exceptions any question proper to be reserved in civil causes and the judgment rendered in said proceedings, and the Supreme Court may affirm, modify, or reverse such judgment, or render judgment in such proceedings as the circuit court, city court, or court of like jurisdiction should have rendered. An appeal by the defendant shall suspend the judgment till the determination of the appeal."
It is plain that appeals in such cases are not trials de novo- in this court. The statute (Code, § 3002) vests in the trial court the power, and imposes thereon the duty, to decide whether the attorney charged shall be disbarred or merely suspended. In order to present for review a trial court's decision to disbar, rather than suspend, an attorney, it is necessary to save the question in the trial court. It cannot he presented.here for the first time. Hence there cannot be on this record any review of the trial court’s conclusion to disbar, rather than suspend, the attorney.
The judgment removing and disbarring the appellant is not affected with error. It must therefore be affirmed.
Affirmed.
Concurrence Opinion
(concurring). We would not be understood as bolding that this court might not, on this record modify tbe punishment imposed by tbe trial court, if we were so inclined upon consideration of tbe proper proportion between tbe acts charged and the punishment visited upon them.