State Ex Rel. Harrington v. Fortune

Per Curiam. This is an original action in the Supreme Court to obtain a writ of mandamus. The relator has alleged in his petition that he was duly admitted to practice law in the Grant" Circuit Court, of Grant county, Indiana, on September 12, 1925, and four days later moved to the city of Jefferson-ville, Clark county, Indiana, and opened an office there for the practice of law, and ever since said time has held himself out as a practicing, attorney in the city of Jeffersonville. That after his location there, he appeared as counsel in the Clark Circuit Court for a client named in the petition, and presented an authenticated copy of his said admission to practice in the Grant Circuit Court, and asked that his name be placed on the roll of attorneys of the Clark Circuit Court, and that he be permitted to appear and act as attorney for his said client. But that the Clark Circuit Court refused to give him recognition as a practicing attorney at the bar of that court, and still so refuses. “Wherefore, relator prays for an alternative writ of mandate, directing and ordering the said James W. Fortune, Judge of the Clark Circuit Court, to recognize and permit the said relator the full privileges and rights of a practicing *347 attorney in said court.” There was no allegation denying that the Clark Circuit Court had already inquired or set about inquiring into the moral character of the applicant who thus offered to practice at its bar, or denying that it had determined or undertaken to determine for itself whaj; his moral character was, nor any ■allegation that it had failed to make such an inquiry and determination, or that relator had asked the court or the judge to make an inquiry, or to determine any question as to his moral character. A verified motion to dismiss this action for the alleged reason that the writ of mandamus is not asked in aid of the appellate powers and functions of the Supreme Court, nor to compel the performance of any duty enjoined by law upon the Clark Circuit Court or the judge of that court, and therefore that the relief asked is not within the jurisdiction of the Supreme Court to grant, has been filed by the respondent. §1244 Burns 1926, §1, ch. 87, Acts 1915 p. 207. In support of the motion, respondent has filed a duly certified transcript of proceedings in the Clark Circuit Court, of Clark county, Indiana, “In the matter of the application of Joseph Harrington to practice law in the Clark Circuit Court and in Clark county,” which shows that relator’s certificate of admission to the bar in Grant county was presented to the Clark Circuit Court on October 7, 1925, that a motion was then made that his moral character be inquired into by the court, that on eighteen different dates thereafter, in the months of October, November and December, 1925, that court made orders in the matter of such application, and that the last of these-orders, made on December 19, 1925, recited a finding that the showing by relator of cause why his application should not be stricken from the files for contempt of court was insufficient, and concluded with the following judgment: “It is therefore *348 considered and adjudged by the court that the application of Joseph Harrington be stricken from the files because of the said failure of said applicant to appear before Margaret E. Hines, court reporter, on December 2, 1925; for examination under the order entered by this court on November 17, 1925,.and that the intervenor recover of said applicant his costs * * * to-which ruling of the court the said applicant excepts.” A brief in support of the motion to dismiss was filed with it, and the relator has since filed his brief. In that brief he tacitly admits the truth of the facts stated in the motion and in the certified transcript filed with it, and only says that: “The status of the above cause is somewhat irregular, growing out of an act of courtesy shown the court and bar of Clark county, not provided for by the law in such cases. * * * At the most, in said proceedings, if the court attempted to inquire into the moral character of said relator, the matter is not in such condition that the relator may appeal from said action.” Relator cites and relies upon the statute which reads as follows: “Whenever any person has been admitted to practice law in a court of record in any county, he shall be entitled to receive from the clerk a certificate of admission which shall authorize him to practice law in all courts of this state; but any court may, at any time, inquire into and determine for itself the moral character of any person practicing or offering to practice law in such court.” §1034 Burns 1926, §998 Burns 1914, §963 R. S. 1881. The question arises whether a court which is not shown to have determined for itself the moral character of one ' admitted to practice law in the circuit court of another county, and more especially a court that had set about to “inquire into and determine for itself the moral character of” such member of the bar *349 of another county offering to practice before it, but which was baffled and prevented by the refusal of that person to appear and submit to examination with relation to the matters in issue in such inquiry, is charged with a clear legal duty to recognize the applicant as a member of its own bar, without having determined for itself that he is a person of good moral character, and whether, because of the existence of that duty, the Supreme Court has jurisdiction, under its power of issuing writs of mandamus to circuit courts “compelling the performance of any duty enjoined by law upon such circuit courts,” to issue a writ commanding the circuit court to so recognize him. The statement of this question is its own sufficient answer. Relator is not here with a showing that the Clark Circuit Court or the judge of that court re-fused to “inquire into and determine for itself his moral character,” when he attempted to practice before it, nor is he asking for a writ of mandamus compelling the court or the judge to do so. But he seeks to obtain a writ commanding that he be recognized as a qualified attorney, whatever the result of such an inquiry may have been or may be. In setting about to “inquire into and determine for itself the moral character of any person practicing or oifering to practice law in such court,” the judge of the Clark Circuit Court would exercise a judicial function. And mandamus does not lie to control the action of a circuit court by commanding it to reach a designated conclusion in a matter submitted to it for judicial determination, or. to render a particular judgment as the result of a judicial inquiry. State, ex rel., v. Wrigley, Judge (1918), 187 Ind. 78, 82, 118 N. E. 353; State, ex rel., v. Williams, Judge (1918), 187 Ind. 89, 90, 118 N. E. 564; State, ex rel., v. Leathers, Judge (1925), ante 97, 149 N. E. 900, 901. *350 The facts alleged in the petition for a writ of mandamus do not bring this cause within the jurisdiction of the Supreme Court to issue such writs, while the facts shown by the verified motion to dismiss and the certified copy of the record of proceedings in the Clark Circuit Court affirmatively disclose that it cannot be brought within such jurisdiction by amendment. And since the truth of those facts is not denied, but is tacitly admitted by the relator, we think it best finally to end the proceeding by entering a dismissal. The motion to dismiss relator’s petition is sustained and this action is dismissed.