:414
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ofthe uncertNn;, and Whel'lrQQt:h have JU,aIlifestl,y to j the court the i' *e!i(}j is ,the enough lllerU in the claim of to wal,Tant tl;te courrt in measuring ,the ,damages by the amount of the interest: that I ,would have accrliied;QJl. the notes 1, 1897, alldJanuary 1, 1899, had they been given, and not paid; and judgment may be rendered for the balance due totlle: cOIliplaiJlant, with interest oply from January until paid,and the costs of the action, and also a judgment enforcing the mechanic's lien set up in the bill!
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UNITEJ)ST:A.TES
v. 1;'ARKS.
(Circuit Court, D. Oolorado; March 21, 1899.) NQ.ll,S:.l!. 1. DIBB lRMENT OF' PETITION:
,While proceedings IP a for llre $llrject to judicial theenq that they shall be conducted without oppression or unfalrness,.there Is no ·established, formal procedure, and a PetftlOll 'for disbarment is 'sufficient' which' states sufficient facts: to advise the respondent: of the nature Of the charge against him.
2. BAME,Y(}ROUNDSFQR DISBARMEN'f-JmuTATION OF CRIMINAL PROSECUTION.
,A court Is war1"lilnted illdi/>barl'ing an attorney. showing moral turpitude or unllrofes!3ional conduct, and whether or not such acts constitute crimes under a statute is not of controlllng importance; hence, if the act charged' constitutes a crime, neither the fact that the'respondent has not been convicted thereof,. n9r that a prosecution is balTed, by limitation, Is a 4efense to proceedings for 4i!\barment.
This is a proceeding .for the disbarinent of defendalltas ali attorney. Heard on' motiol1s and'demurrer attacking the' :sufliciency of tl1e petition. the Balph w. E. C. Miles,for defendant " HALLETT, Judge ,(orally). 'rhis;is a petition to disbar. In the first count the respondent is charged witl1entering ,into an agreement, in the month pfApril, 1891, with certain offi,cers of the of Lake; by which he was to have judgmept against the coUPty of Lake for the sum of claim legalseryices rendered by an attorney at law, in respect to certain, suits which had been theretofore prosecuted against the county, and that, ll,pontbe entry of judgment, bonds were issu,ed by the county' jn of tbe judgment, to the amouutof the judgment.. Of tl;lese bonds, the officers who had in the scheme forallowing.the judgment against the cO,unty received one-half. In the second count it is alleged that the county of Lake, in the month of November, 1895, brought suit in the dis.trict court of Lake county to set aside and vacate the j,udgment
UNITED STATES V. PARKS.
415
for $60,000, obtained by the respondent, as related in the first count, and obtained an injunction against the transference of the bonds then held by the respondent, and that the respondent did, nevertheless, transfer the bonds, in defiance of the injunction, and with a view to defraud the county of the amount specified in the bonds.. In the third count it is alleged that certain. suits were brought, in the years intervening between 1882 and 1889, against the county, upon interest coupons attached to bonds which had been issued by the county, and that respondent was employed as attorney and counselor by the county in those suits, and thereafter he represented that he had succeeded in the defense made by him in behalf of the county, and had defeated the plaintiffs in those actions in respect to the matters in which they sought to recover; that since that time he has abandoned the service of the county, ;lnd taken up with the owners of the bonds, accepted employment from them, and is now engaged in prosecuting suits against the county in respect to the same matters which he had formerly defended for the county. Objection is made to the petition by motion to strike out some parts as irrelevant and impertinent, and also by a motion to make some of the counts more definite and certain in respect to matters which are charged in them, and also (to the first count of the petition as amended) by.demurrer, upon grounds which will be stated a little further on, In respect to the motion to strike out parts of the petition, and the motion to make it more definite and certain iIi some parts, they will be overruled, upon the ground that the matters alleged are sufficiently stated to give notice to the respondent of the charges against him. In RaIidnllv. Brigham, 7 Wall. 540, the supreme court says: "It is not necessary that proceedings against attorneys for malpractice, or any unprofessional conduct, should be founded upon formal allegations against them. Such proceedings are often instituted upon information developed in the progress of a cause, or from what the court learns of the conduct of the attorney from its own observatlon. Sometimes they are moved by third parties upon affidavit, and sometimes they are taken by the court upon its own motion. All that is requisite to their validity is that, when not taken for matters occurring in open court, in the presence of the judges, notice should be given to the attorney of the charges made, and opportunity afforded him for explanation and defense. The manner in which the proceeding shall be conducted, so that it be without oppression or unfairness, is a matter of jUdicial regulation." ,
In this instance the proceeding was begun upon a letter written to some one by the injured party. The court, having come into possession of the letter, after some inquiry by the grand jury, which inquiry was begun upon the same letter, notified the attorney that on a certain day inquiry would be made as to his conduct in the premises; and upon that inquiry, so begun, the attorney was disbarred. So, in Ex parte Wall, 107 U. S. 265, 2 Sup. Ct. 569, the proceeding against the attorney was upon an order entered by the court upon information received from parties in attendance on the court of the conduct of the attorney in participating in a lynching just outside of the court room. The charge in the present instance is quite as specific as it was in Ex parte Wall and in Randall v. Brigham. Numerous cases have been
416
93 F,EDERAL:REPORTER..
to effect. In ,judgment of. the coul't, the >'-tlatol' has suffiqlflnt,ly stated the facts to apprise the respondent of the nature of the against him, andnQmore can be demanded. The deliU-1J;rrel' to the first count in. the petition as amended is put upon the ground, apparently, that the matter charged in that count is a under a law of the, state. of Colorado, and that it was at the beginning of by a statute of limitation of the state. It is alleged in the petition that the offense, which is bribery, was cqmruitted on April 1, 1891, and this. petition was filed in December, 1898. It is Illso contended that, if the case be regarded as not within the statute of limitations, there still must be a conviction, or must have been a conviction, of the crime, before there can be any proceeding to disbar based,;upon it. In respect to the statute of limitations ithas been decided in several cases that it has no application ina case of this kind. One of the cases is In re Lowenthal, 78 Cal. 428" 21 pac. 7; anotper, Ex parte Tyler, 107 Cal. 78, 40 Pac. 33. And as to the objection that no proceeding can be .had until there has been a conviction of the offense under the statute, the case of Ex parte Wall, 107,U. S. 265,2 Sup. Ct. 569, is a sufficient answer. Respondent quotes largely, in support of his position, from the dissenting opinion of Mr. Justice Field in that case. Quotation would be apt, if it had been found in the opinion of the court, rather tban in the opinion of a dissenting judge. The case itself is full authority to the point that no conyiction is necessary where the misconduct alleged amounts to the !!ommission of a crime. In that case the charge against, the accused was o( homicide, and it would seem that, if in any case the rule be that a, conviction of the crime must first be bad, it would have been applicable in that qase. There are cases in which it has been held that, if the offellse be committed by the attorney in some matter not connected with his office as an attorney,. there must be a conviction of the crime before prosecution to disbar. Those authorities are not recognized by the supreme court in Ex parte Wall. And this must be the correct rule, as anyone may learn from a consideration of the ground upon which a proceeding to disbar proceeds. 'the matter alleged against an attorney in disbarment proceedings mayor may not be a crime under the law. It may be an act of unfaithfulness to his client, or misconduct in court, which is not punishable by any statute, state or federal ; or it may be, as in this instance, an act which is forbidden by a law of the state. The circumstance t;IlaUt is or is not forbidden by any statute of the state is of no controlling importance. An attorney at law must be of good moral character. In this court he must make oath to demean himself uprightly and according to law. In any proceeding to disbar, the questiQn is as to his, conduc.t aSian attorney, and, if hebe found delinquent in that respect, if his conduct shows moral turpitude, then he may be disbarred, whether tbe ·be: one which. is forbidden by the crimirlal law. or not. . And sO,as to tbe statute of it maybe true, as said by the California court, that the court will iDot encourage stale charges,those which, by their a.ge, have passed fvom the memory of men,'especially the conduct oL the attorney has bed} cx:-
IN RE FOWLER.
417
emplary in recent time1l. But, of the matters alleged in this petition, it is charged that some of them are still pending. The suits which it is charged have been unlawfully induced and by the respondent are still pending, in this court and in other courts of this jurisdiction. And it is also alleged that the county is still seeking to set aside and annul the bonds which are charged in the petition to have been fraudulently obtained by the respondent. So that, upon aU I find nothing in the demurrer or in the motions which can prevail agaiI;tst the charges. The motions and the demurrer will be overruled, and the respondent will be required to answer the petition within 30 days from this day.
In re FOWLER. (District Court, W. D. 'Visconsin. No. 41. BANKRUPTCy-EXAMINATION OF WITNESSES-WIFE OF BANKRUPT.
April 12, 1899.)
'Where, by the law of the state in which the proceedings are had, a wife cannot be a witness for or against her husband. she cannot be required, in proceedings in bankI'Uptcy against the husband, to testify concerning property in her possession alleged to have been conveyed to her in fraud of the bankrupt's creditors. The trufltee in bankruptey, seeking to recover such property, should proceed by bill of discovery against the wife.
In Bankruptcy. Reed & Reed, for bankrupt. Ross, Dwyer & Haniteh, for creditors. BUNN, District Judge. Theodore M. Thorson, the referee in bankruptcv to whom the above cause was referred, has certified to this court' the following questions, which he says arose pertinent to .the said proceedings; the creditors claiming that the wife of the bankrupt holds propert,)' in her posses8ion, and under her eontl'Ol, whieh· shp has, direetly or indirectly, obtained from her husband, and with' heI' husband's money, in fraud of creditors and the pal'tieular ereditor' raising the question: Fiest. May the wife be eompl'lled to testify as to sueh property, and as to how she acquired it, and as to how she holds it? Seeond. May the wife be compelled to testify to any faets or transaetions to whieh 'she was not a party or witness, 01' eompelled to tpstify to mere eonfessions 01' admissions of the husband in regard to his dealings with third persons '? In answer to these question8, it may be observed that, by the bankrupt act of 1867 (section 5088, Rev. S1. G. 8.), for good eause shown, the wife of any bankrupt might be required to attend before theeourt, to the end that she might be examined as a witness; and, if she did llot attend,at the time and place specified in the order, the bankrupt should not be entitled to a discharge, unless he proved to the sa:tisfaetion of the <,:ourt that he was unable to proeure hpr attendance. This pro, vision is omitted in the new bankrupt law, and tllPre is no provision whatever requiring or permitting a wife to as a witness . 03 F.-27 . . .