Reilly v. Cavanaugh

| Ind. | Nov 15, 1869

Elliott, J.

The first question presented by the appellant is, that the court erred in overruling the demurrer to the motion.

It is to be observed that the demurrer is to the entire motion, and hence if any one of the charges or specifications contains sufficient cause for the motion, the demurrer was correctly overruled. ‘ The first and third specifications are evidently based on section 779 of the code, 2 G. & H. 829. The first may be defective in not stating the amount of money collected and withheld, but the third is not subject to that objection, and, we think, states sufficient facts to authorize the motion, and the demurrer was, therefore, properly overruled.

The second charge is predicated on the third subdivision of section 777, which authorizes a suspension of an attorney “ for a wilful violation of any of the duties of an attorney as hereinbefore prescribed.” One of the duties of an attorney referred to is stated in the seventh subdivision of section 771, to be “ not to encourage either the commencement or continuance of an action or proceeding from any motive of passion or interest.” The second charge alleges, that the appellant is in the habit of encouraging the commencement and prosecution of actions for the mere purpose of pi’omoting his own personal ends and interests. We are not prepared to say that this charge is sufficiently definite to sustain the motion. The accused, under a charge so general, would scarcely know what particular act or acts he was called upon to answer, or how to prepare his defense. The charge should specify the particular case, or cases, in which he had thus violated the duties of an attorney, so that ho could prepare to meet it on the trial.

The next error complained of is, sustaining the demurrer to the third and fourth paragraphs of the answer.

These paragraphs are so obviously bad that they would have been passed unnoticed, but for the fact that the appellant, in a brief written by himself, insists upon their sufficiency. They do not contain the shadow of a defense.

Overruling the appellant’s motion for a new trial is assigned for error.

One of the causes urged for a new trial was the refusal of the court to award the appellant a trial by jury of the issues formed in the case. This, we think, was an error. Section 780 of the code provides that such accusation may be filed in any court in which the attorney practices, and, after five days’ notice of the filing, the attorney shall be bound to appear and plead to tbe same, or suffer judgment by default. “ If he appear, pleadings may be filed and trial had as in other cases.” Here the appellant appeared and answered the accusation, and issues of fact were joined thereon, and we think the statute clearly authorized the appellant to demand that they should be tried by a jury. It was held in Ex parte Robinson, 3 Ind. 52" court="Ind." date_filed="1851-11-26" href="https://app.midpage.ai/document/ex-parte-robinson-7032030?utm_source=webapp" opinion_id="7032030">3 Ind. 52, which was a similar proceeding against an attorney, under the revised. statutes of 1843 (c. 38, p. 660), that he was not entitled to a jury trial. The provisions of the statute of 1843 and those of our present code, on the subject, differ materially in this respect. The former clearly did not contemplate a trial by jury in such cases. Neither the former nor present constitution of the State contains any guaranty of the right of jury trial in such proceedings, and we must, therefore, look to the statute alone for the proper mode of procedure.

L. Reilly, Milford & Rhodes, Gregory § Harper, H. W. Chase, W. C. Wilson, S. A. Huff, and R. P. DeHart, for appellant. J. McCabe, for appellees.

Under section 778 of the code, the attorney, under such a motion, may be suspended, and a judgment rendered against him for the amount of money withheld by him. It was otherwise under the statute of 1838. Dawson v. Compton, 7 Blackf. 421" court="Ind." date_filed="1845-06-10" href="https://app.midpage.ai/document/dawson-v-compton-7031090?utm_source=webapp" opinion_id="7031090">7 Blackf. 421.

The judgment is reversed, with costs, and the cause remanded, for further proceedings, with leave to both parties to amend their pleadings.