State v. Tracy

87 N.W. 727, 115 Iowa 71

• Court: Supreme Court of Iowa
• Decided: October 24, 1901
• Status: Published

Opinions

Given, C. J.

I. Appellant’s first contention is “that the court did not have jurisdiction to try the case, for the reason that the proceedings were not commenced in the manner provided by section 325 of the Code.” Said section is as follows: “Sec. 325. Proceedings, How Begun. The proceeding to remove or suspend an attorney may be commenced by the direction of the court, or on motion of any individual. In the former case, the court must direct some attorney to draw up the accusation; in the latter, the accusation must be drawn up and sworn to by the person making- it'.” One Penfield mailed to Hon. F. H. Helsell, judge of the said court, in vacation, an affidavit charging the defendant with certain unprofessional conduct as an attorney, and asking that he be disbarred. Judge Helsell ordered that the affidavit be filed, and the defendant notified to appear on the second day of the next term.- On said, second day Judge Helsell received another affidavit from Penfield, to the effect that he was too poor to pay attorney’s fees, and asking that the proceeding,, be docketed in the name of the state, and that the county attorney be appointed to prepare and prosecute charges for disbarment of the defendant. The court ordered the case docketed in the name of the state, and appointed Attorneys H. F. Shultz and E. M. Duxoe to prepare charges and prosecute the case. They preferred charges, and defendant appeared thereto, and pleaded not guilty, whereupon trial was had. The defendant' contends that a judge in vacation cannot direct such proceedings; that it can only be by the court in session. This is correct, but, the alleged misconduct having been brought to the knowledge of the judge by the affidavit of Penfield, he might properly, when sitting as a court, direct proceedings to be begun and prosecuted as was done. Notwithstanding the filing of the affidavit of .Penfield, this proceeding was upon the direction of the court, and the court had complete jurisdiction to hear the cases.

2 II. Defendant’s -remaining contention is that the court had no authority to render the judgment that it did. This is a proceeding under the Code, sections 323 and 324' of which provide that revocation or suspension of the license is to follow conviction. In this case the court failed to find the defendant guilty, dismissed the ■charges against him “for further proceedings,” and yet rendered judgment “that the defendant be reprimanded,” and for costs. The defendant not being found guilty, a judgment discharging him from further answering — or, in other words, a dismissal of the charges — was the only judgment that could be rendered. If he had been found guilty, judgment suspending or revoking his license is the only judgment authorized by the Code. Defendant’s counsel concede that courts have the inherent right to censure counsel for unprofessional •conduct in open court, hut insist — and correctly so — that judgment of reprimand is unauthorized in this proceeding, and especially so where there has not been a finding of guilt.

It is said that he did not move the lower court • to retax the costs, and therefore cannot be heard to question their taxation to him in this court, but, as we have seen, there is more than costs involved in the judgment.

Appellee’s counsel contend that we have no jurisdiction to consider this appeal, for reasons stated, and renews the motion to dismiss the appeal heretofore passed upon. We see no reason for changing o*ur former ruling.

For the reasons stated, th-e judgment of the district COUrt ÍS REVERSED.