# State v. Mosher

> Supreme Court of Iowa · April 5, 1905 · 128 Iowa 82

URL: https://www.frixlaw.com/law-library/cases/7111550

## Case

- **Full name:** The State of Iowa v. L. L. Mosher
- **Court:** Supreme Court of Iowa
- **Decided:** April 5, 1905
- **Citations:** 128 Iowa 82; 103 N.W. 105
- **Precedential status:** Published
- **Opinion:** Opinion of the court by Ladd
- **Judges:** Ladd
- **Cited by:** 29 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/7111550

## Opinion text

Ladd, J.
1. Attorneys: disbarment; procedure. The grand jury called the court’s attention to the minutes of certain testimony given before that body concerning a transaction between defendant and one Mrs. Hardin, and the latter’s affidavit relating there- • ° to was also presented. The disclosures were such that the court immediately entered an order designating three members of the local bar to “ draw u,p and file in the name of the state of Jowa the proper accusation against - said L. L. Mosher at least ten days before the first day of the next term of court.” As a part of the same order, he was required, to,appear and answer on said first day of the next term. This was irregular, for section 326 of the Code contemplates an examination of the accusa:tion by the court, and a finding as to its sufficiency, before the accused is ordered to answer. Statutes of this character, however, are uniformly held to be directory, and’ as the defendant tested the sufficiency of 'the accusation by motion and demurrer, and thereafter answered, the irregularity was without prejudice. State v. Howard, 112 Iowa, 256 .
*85 2. same. II. Exception was taken to the order appointing attorneys to prepare the accusation in that it contained no recital of facts upon which the prosecution should be founded. This was unnecessary. Section 321 of the Code enumerates the grounds of revoking or suspending the license of an attorney, and section 325 declares that proceedings “ may be commenced by the direction of the court,” in which event “ the court must direct some attorney to draw up the accusation.” The statute does not specify that anything else shall be included in the order, and the inference clearly deducible is that the' attorney,- in preparing the accusation, may include any matter he may deem appropriate, and is not limited to anything the court may have in mind in directing that proceedings be commenced. '
3. Disbarment proceedings: jurisdiction. III. Appellant, by appropriate motions, challenged the ■jurisdiction of the district court to entertain the proceeding or enter any order therein. Counsel’s thought is that, as this court alone may admit applicants to prac j ^x x tice as attorneys at law, it necessarily possesses d 7 ° the exclusive inherent power to revoke such licenses after being issued. Section 323 of the Code provides that “ any court of record may revoke or suspend the license of an attorney or counsellor at law to practice therein, and a revocation or suspension operates to the same extent in the courts of all other counties.” This was copied from the Code of 1873, and is substantially like corresponding sections of the Codes of 1860 and 1851. Prior to an act of the Twentieth General Assembly district courts admitted to the bar upon examination and this court on motion. That act vested in this court the exclusive .authority “ to admit -persons to practice as attorneys in the courts of this State or any of them.” Section 309, Code. This cannot be held to repeal by implication section 323 of the Code, as contended, for there is not, of necessity, any connection between the two; and, moreover, the Legislature would not have been *86 likely to prescribe the procedure for revoking licenses without designating the forum. If anything were to be inferred, it would be. an intention to amend so as to' deprive courts- of record other than this of jurisdiction. But such'an inference is not permissible. Diver v. Keokuk Savings Bank 126 Iowa, 691 . The law does not favor repeals by implication, and never where the later statute may be so construed as to avoid any inconsistency with that of an earlier date. The manifest purpose was to devolve upon this court the duty, as well as the responsibility, of passing upon the qualifica'tions of candidates for admission to the bar, and not to change the practice with reference to revocation or suspension of licenses for subsequent misconduct. At the common law, courts could not admit attorneys to practice. Every litigant was bound to appear in person. Only those might be represented by attorney who had permission of the King. The custom was for him to issue a writ to the judges commanding them to receive named persons by their attorneys, and the judges obeyed. Thereafter barristers and counsellors at law were called to the bar by the Inns of Court, whose discretion in the matter of who should be called was not subject to the control of the court. The power of the court to pass upon the qualifications of candidates for admission ¿s solicitors was first conferred upon the judges in 1292 by - Edward I, and has been regulated from time ‘to time by statute.' Thus 1 Henry IV, chapter 18, provided, among other things, “ that all attorneys should be examined by the justices and by their discretion their names shall be put upon the rqll.” See In re Day, 181 Ill. 73 ( 51 N. E. 646 , 50 L. R. A. 519). Bht the pewer to punish, as well as to prohibit from practicing, has always been regarded as incident to the existence of courts, and was exercised long before ■attorneys were recognized as a class' or as belonging to a distinct profession, though subsequently regulated by the acts of Parliament. Says Justice Nelson in Ex parte Bradley, 7 Wall. 364 ( 19 L. Ed. 214 ), “This power has been *87 exercised and recognized ever since the organization of courts.” See State v. Kirke, 12 Fla. 278 ( 95 Am. Dec. 315 ); In the Matter of the Application of Cooper, 22 N. Y. 81 .
The power to punish or exclude from practice, then, has always been regarded as inherent in the court, while that to • pass upon the qualifications to practice at the bar has seemed to have had its origin in legislative enactments. Neither one has ever been thought necessarily to depend upon the other. The doctrine sometimes advanced that the courts are not bound by statutes defining what qualifications candidates for admission as attorneys shall possess necessarily rests on the thought that the determination of who shall act as officers of the court is incident to the efficient discharge of their independent functions as an integral part of free government. See In re Day, supra; Matter of Goodell, 39 Wis. 232 ( 20 Am. Rep. 42 ); In re Mosness, 39 Wis. 509 ( 20 Am. Rep. 55 ); Petition of Splane, 123 Pa. 527 ( 16 Atl. 481 ); article in 13 Harvard Law Review, 233. See, also, Matter of Application of Cooper, supra; Ex parte Garland, 4 Wall. 333, 379 ( 18 L. Ed. 366 ); Ex parte Yale, 24 Cal. 241 ( 85 Am. Dec. 62 ). Whether this is sound is not pertinent to the present inquiry. That courts admitting to practice possess, in -the absence of statutes, the inherent power to disbar, is well established. Scott v. State, 86 Tex. 321 ( 24 S. W. 789 ); State v. Richtor, 49 La. Ann. 1015 ( 22 South, 195 ). But from this it does not follow that none other may be authorized to do' so. Formerly each court might punish or disbar for itself, but its judgment was not effective in any other court. State v. Kirke, supra; Ex parte Bradley, supra; Ex parte Tillinghast, 4 Pet. 108 ( 7 L. Ed. 798 ). This was remedied in England by 22 and 24 Yict. (1860), chapter 127, section 25, and by the statute of this state decláring such judgments effective “ in the courts of all other counties.” This merely gives to such an adjudica-' tion the same force and effect as that in any other litigation. *88 It declares that persons found by one court unfit to continue in the profession shall be excluded by all other courts, and is a legitimate exerciáe of the police power for the protection of the public against the evil consequences of such persons continuing in the profession. As'said, there is of necessity ho connection between the power to admit to practice and the power to disbar for' subsequent misconduct, and we know of no reason for denying the authority of the General Assembly to confer on trial courts of record the power to suspend or disbar. This does not include courts of criminal jurisdiction only, as contended by appellant, for this is not a criminal action. State v. Clarke, 46 Iowa, 155 ; State v. Laughlin, 73 Mo. 443 . As said, independent of statute each court might have exercised its inherent power of punishing and removing its officers, and the effect of the legislation cited was merely to- recognize and confirm the power which previously existed. Whether this 'might have been denied to either court is a different question. As directly in point, see In re Waugh, 32 Wash. 50 ( 72 Pac. 710 ); State v. Kirke, 12 Fla. 278 ( 95 Am. Dec. 315 ); and In re Freerks, 11 N. D. 120 ( 90 N. W. 265, 273 ), where the practice of instituting such proceedings in the appellate instead of the msi prius court is disapproved. The trial court without doubt had jurisdiction.
4' notice.ITI0NS: IV. James and Isabell Hardin were unable to attend the trial, and upon written motion the court entered an order January 14, 1904, that their deposition be taken on oral interrogatories on the 18th day of the same month. Defendant had no notice other than that with which he was charged by being a party to the proceedings and present when the order was made. This was in pursuance of section 4688 of the O'ode, declaring that no party shall be required to take depositions on notice “ during a term of court in which the action is pending, unless such court, upon written motion, in furtherance of justice, shall so order.” Contrary to appellant’s *89 contention, no other notice was necessary. Less time than would he permissible under the statute may be as essential in the furtherance of justice as the taking of the deposition. The statute is broad.enough to permit the court, when witnesses whose attendance has been anticipated are prevented, from being present, rather than postpone the trial at great inconvenience or expense, to direct that their testimony be taken by deposition at such reasonable time as the court may fix; and as such order is made on motion, no other notice is necessary.
5. Depositions in disbarment PROCEEDINGS. Y. When it was proposed to read the depositions so taken in evidence, objection was made on the ground that the accused was entitled to be confronted in court by the witnesses against him. Were this a criminal . ° . action, the point might be well taken. Nut the 7 A ° ^ proceeding is civil, and within the class designated special proceedings in the Code. State v. Clark, 46 Iowa, 155 ; Bar Ass’n v. Randel, 158 N. Y. 219 ( 52 N. E. 1109 ); Re Evans, 22 Utah, 366 ( 62 Pac. 913 , 53 L. R. A. 952, 83 Am. St. Rep. 794 ). The object of the proceeding is not punishment of the delinquent, but the “ protection of the court, the proper administration of justice, the dignity and purity of the profession, the public good, and the protection of clients.” State v. Finn, 32 Or. 519 ( 52 Pac. 756 ); Ex parte Wall, 107 U. S. 273 ( 27 L. Ed. 556 ). The use of depositions in a civil action or other civil proceeding is expressly authorized by statute (section 4684 et seq., Code), and there is no ground for making an exception of disbarment proceedings. The decision in the Matter of an Attorney, 83 N. Y. 164 , relied on by appellant, was put on the ground that the statutes of that State did not authorize the taking of depositions in special proceedings. In re Simpson, 9 N. D. 379 ( 83 N. W. 541 ), is not in point, for the court merely held that certain affidavits' w'ere not admissible in evidence. Nor are the decisions of what was really before the courts In re Duncan, 64 S. C. 461 ( 42 S. E. 433 ), and *90 State v. Finley, 30 Fla. 331 ( 11 South. 674 , 18 L. R. A. 401). In the former the evidence taken in the trial of the cause, out of which the disbarment proceedings arose, was offered, and in approving the ruling by which it was rejected the court commented on the desirability of the judge hearing the witnesses. In the latter an order referring the case to a special master to take testimony was disapproved, but the error was held to have been waived. The decision in the New York case seems to have been misapprehended, and the necessity of confronting the accused face to face hy witnesses to have been stated on the assumption that the proceeding is criminal in its nature. On this point all said in either case was dicta. As previously stated, this is not a criminal prosecution, and the requirement of the Constitution that the accused be confronted by the witnesses against him has no application. As directly in point, see In re Wellcome, 23 Mont. 260 ( 58 Pac. 711 ). The depositions were rightly received in evidence,
6 Evidence-of samé?4*011 VI. The evidence was taken down in shorthand, and upon the conclusion of the trial March 5, 1904, certified by the judge and reporter, filed with the clerk, and, in pursuance an or(^er then entered, was transcribed, an4, S. W. % of section 4 to A. P. Young in May, 1897, and the latter to Mosher in August following. A. A. McGarra began suit to subject this forty acres to the payment of certain expenses and costs in partition proceedings in December, 1900, and obtained a decree aé prayed. Sale was made to McGarra November 22, 1902. Some time prior to this sale defendant had conveyed the land to H. O. J. Goodale, and, as he claims, received from him a duebill typewritten on a piece of paper about an inch in width and three and one-half inches long, in language following: “ I accept deed of L. L. Mosher to SE 4, SW 4, T. 76, R. 24, of July 17, 1901. I owe L. L. Mosher $1600 for same. I agree to pay the Basler Mortgage of $1000.00, and all taxes and redeem tax sales. I waive all covenants of warranty Wy reason of McGarry’s suit. Dated Apr. 5, 1902. H. O. J. Goodale.” When it is added that this land was never worth to exceed $1,600, this instrument seems scarcely susceptible of explanation. The defendant paid Mrs. Basler the amount of the mortgage, and had her assign *98 in blank. It was in tbe hands of various parties, including Goodale, and finally came into the hands of the accused, as he claims, representing A. P. Young, a sister of his wife; that is, she had let him have money, which he agreed to repay, and he thinks her money went into it, although he had not charged himself with it on his books. Goodale died May 14, 1903, and Ede E. Law and D. J. Goodale were appointed administrators, by whom defendant was employed . as attorney for the estate.
On the 24th day of September, 1903, he presented an application to the court for authority to pay taxes on land and for a monument, and in it merely recited that there was a mortgage on a certain lot, with some costs made thereon, and “ also a mortgage on "the southeast quarter of the southwest of 4 —16 — 24, amounting to $1,086.96, drawing 8 per cent. This mortgage is also on land of other parties ”; and another mortgage on same land in another township. At the same time, and without any explanation, he presented and’ procured to be signed by the court an order directing the administrators to pay the other two mortgages, “ and, inasmuch as it is shown that the mortgage on the S. E. %, S. W. %, of 4 —116 —'24 is also on the other land, they are directed to take an assignment thereof, and cancel same as to the said 40 acres, and hold same as a claim and lien on other lands.” That he deliberately included in .the order that for which the application signed by the administrator had not asked, and which the court, if advised, would not have granted, is not open to controversy. He knew, when he prepared it, that the other land was beyond the reach of a mortgage, and we have no doubt that reference to it was a subterfuge by which to induce the administrators to, take up a mortgage which the estate was under no obligation to pay. At that time a sale of the land had been made to McGarra on which title in him was quieted in March, 1904. In view of the circumstances, we have no doubt that, as testified by Mrs. Law, he represented that one-half she paid to procure *99 an assignment of Lhe mortgage under the order of the court would be replaced from its enforcement against other lands covered by it. Moreover, the administrators at that time knew nothing of the alleged duebill. The recital of these facts establishes the charge of unprofessional conduct toward the court as well as his clients, regardless of whether the order obtained was against their, interest. A lawyer is not justified in resorting to deception in dealing with those 'for whom he acts, even though the outcome may happen to be without injury to them. Nor is an attorney excusable for including in an «order prepared for the judge to sign material matter not included in the application. Even the order was a misrepresentation, for it indicated a statement that the mortgage covered other lands. Practically the only excuse presented is that he did not recollect at the time that the other lands were no longer covered by the mortgage. This cannot be accepted, as he was connected with all the litigation, and, besides, was directly interested in the mortgage’ itself.
In considering the several charges against’ defendant it has not been our purpose to review all the evidence introduced. That would be impractical where the abstract, as in this case, contains more than 300 pages. Enough has been said, however, to indicate our conclusions, and upon what they are based.
10. Disbarment: moral character. One of the requisites for admission to the bar is the possession of good moral character (section 310, Code), and by the consensus of- judicial opinion it is also a requisite for the rightful continuance in the profession. I n re O-, 73 Wis. 602 ( 42 N. W. 221 ) ; Bar Ass’n v. Greenhood, 168 Mass. 169 ( 46 N. E. 568 ); In re Wall, 107 U. S. 265 ( 27 L. Ed. 552 ); In re Percy, 36 N. Y. 651 ; 4 Cyc. 906. The statute does not purport to include all the grounds for the revocation of licenses to practice -as an attorney at law,- and, even though ceasing to. be of good moral character be not within the causes stated *100 in section 324 of the Code, the court had jurisdiction to disbar defendant on that ground. In re Mills, 1 Mich. 392 ; Delano’s Case, 58 N. H. 5 ( 42 Am. Rep. 555 ); State v. McClaugherty, 33 W. Va. 250 ( 10 S. E. 407 ); Sanborn v. Kimball, 64 Me. 140; Serfass’ Case, 116 Pa. 455 ( 9 Atl. 674 ); and cases last above cited. The moral delinquencies must be such, however, as shall unfit the person accused for the proper discharge of the trust reposed in him. Among these are the absence of common honesty and veracity, especially in all professional intercourse. Courts and clients of necessity repose great confidence in attorneys, and any one who has repeatedly betrayed this, and is likely to continue so to do, ought not to remain in the profession. Were the first two charges standing alone, we might be inclined to relegate the parties to such remedies as the law affords; but, when considered in connection with the last two, they tend strongly to indicate such a want of integrity as to disqualify 'the accused to act in any position of trust. In many matters the courts necessarily rely upon the representations of attorneys. Thus it is not the practice to read all the papers in the case before an order or decree is signed, and an attorney who cannot be relied upon to state accurately the con-' tents of these, and -the circumstances upon which they are based, and which justify making them, ought not to be tolerated as an officer of the court. The lawyer should never forget that he is á “ minister of justice,” nor allow his purely personal interests to divert him from the high duties of his office. The record before us bears indubitable evidence that greed of gain is responsible for the inexcusable deceits practiced by the defendant, and that the revocation of his license to practice law should be approved.— Affirmed.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7111550. Public record. Not legal advice.