188 Mo. 493 | Mo. | 1905
Relator is a licensed attorney at
law, authorized to practice in the courts of this State. On June ¿9, 1904, he was convicted in the circuit court of the city of St. Louis of the crime of embezzlement,' and sentenced to a term of two years in the penitentiary.
> In due time, on his application, the circuit court granted him an appeal with stay of proceedings, and admitted him to bail on his recognizance with sureties.
On the petition of the relator filed in this court, praying that a writ of prohibition issue directed to the judge of the circuit court having charge of' the disbarment suit, prohibiting him from proceeding in the matter pending the appeal in the criminal case, a preliminary rule was issued, to which return has been made, in which the facts above stated are admitted, and in which it is also stated that the- petition in the disbarment case did not ask nor did the respondent propose to decree the final disbarment of the relator pending the appeal, but only, if the proof should justify it, to suspend him from practice for the time being, the suspensiqn to end in ease the sentence in the criminal case should be reversed and to become a permanent disbarment only in case it should be affirmed. The return also sets forth certain views of the law which the respondent is advised are applicable to the case.
The cause is submitted for judgment on the pleadings.
On the other hand, whilst the main office of the writ is to keep the court to which it is addressed within the bounds of its jurisdiction, yet, in the exercise of the discretion above referred to, the writ is sometimes used to keep a court from doing what it has no lawful authority to do in a case the general nature of which is within its jurisdiction. This court in reference to an order of a circuit court made in a contested election case per Barclay, J., said: “If the court had no lawful authority to make it, that is to say, if the order was beyond the power of the court in the pending election contest,
In 16 Ency. PL and Pr., p. 1111, it is said: “The writ is not confined to cases where the lower court has no jurisdiction at all, but extends to cases where the court, having jurisdiction of the suit, exceeds its legitimate powers, as, for example, where a court exceeds-its powers by appointing a receiver improperly.” In support of which, among other authorities cited, is',. Railroad v. Wear, 135 Mo. 230.
But in the use of this writ care must be taken not to allow it to be employed as-a mere substitute for an appeal or writ of error; the danger of such misuse is avoided in the exercise of the- discretion above mentioned.
It is, therefore, not a conclusive answer to the relator’s petition to say that the circuit court has jurisdiction of disbarment proceedings, because if the record shows that the court has done or is about to do something that it has no lawful power to do in the given case, the writ is not improperly invoked. That is just what the circuit court has indicated a purpose to do, if the relator’s view of the law as to his status in the criminal case is correct.
The petition in the circuit court is not addressed to its.general jurisdiction over attorneys at law practicing at its bar, but it is founded on a particular statute without which the court has no authority to take the particular action therein prescribed and within which alone it can render the particular judgment therein di
II. Section 4924 confers on the courts power to remove or suspend from practice an attorney in these words: “Any attorney or counselor at law who shall be guilty of any felony or infamous crime, or improperly retaining his client’s money, or of any malpractice, deceit or misdemeanor in his professional capacity, may be removed or - suspended from practice, upon charges exhibited and proceedings thereon had, as hereinafter provided.”
Then follows other sections of the statute prescribing the procedure to be observed when charges of misconduct are preferred and a trial is to be had and then comes: “Sec. 4929. Removal or suspension without trial. If the charge allege a conviction for an indictable offense, the court shall, on the production of the record of conviction, remove the person so convicted, or suspend him from practice for a limited time, according to the nature of the offense, without further trial. ’ ’
The proceeding in the circuit court against the relator is based on the section last quoted, and if the relator is within its terms, the record of conviction fur
The power of the Legislature to make the conviction in the criminal case conclusive evidence of guilt in this proceeding is not disputed, but the fact that it is conclusive is to be considered when we are to decide what is meant by conviction in the connection in which that word is used in that statute. Does it mean conviction in the circuit court regardless of the fact that an appeal has been taken and the cause is pending in this court? If so, then the relator may be disbarred while his appeal is pending and be thereby forever deprived of his means of making a living, yet this court may decide that his conviction was illegal and in the end he may be entirely acquitted. It is suggested that if he should in the end be acquitted the power is in the court that disbarred him to reinstate him. That may be, but even then he is to a great degree at the mercy of the court, and if .it should refuse to reinstate him his condition would be hard.
In the return it is said that the petition in the circuit court does not ask, neither does the court intend to do more than suspend the relator from practice pending the appeal, the suspension to end if the judgment of conviction in the criminal case is reversed and to become a permanent disbarment if it is affirmed.
The petition seems to follow very closely the language of the statute; it does not charge that the relator haá in fact been guilty of misconduct, but only that he has been convicted, and the-prayer is that he be cited to show cause “why he should not be suspended from the practice of his profession and removed from the
But in fact the court has no authority under the statute to render a judgment on condition as indicated in the return.
Does, the statute under discussion mean that a conviction in the circuit court, regardless of the appeal, shall be sufficient ground to disbar an attorney?
Our statute expressly provides for appeals from final judgments in the trial courts in criminal cases. [Sec. 2696, R. S. 1899; and following.] Section 2698 prescribes the condition on which an appeal may operate to stay execution of the judgment, that is, when the court is of the opinion that there is probable cause for the appeal or so much doubt as to render it expedient to take the judgment of the Supreme Court thereon and shall make an order directing that such appeal shall operate as a stay of proceedings on the judgment. That was done in this case and in addition thereto the relator was released on bail and is now free to go about his business subject only to the call of the Supreme Court to answer its judgment. No part of the judgment of the circuit court can be put into execution while the appeal is pending and undisposed of; even the costs of the case cannot be levied out of his property. Since the effect of the appeal and the order to stay its execution is to so suspend the judgment that no direct force can be given to it, how can it with reason be said that an indirect effect of a very serious' character inflicting it may be irreparable injury may nevertheless be given to it?
This question has been considered by the Supreme Court of California and also that of South Dakota, in
We are of the opinion that the relator cannot be suspended from practicing his profession or removed from the bar under the terms of section 4929, Revised Statutes 1899, while his appeal is pending in the Supreme Court, and while the order staying execution is in force.
The writ of prohibition is therefore awarded as prayed, without costs.