In re the Disbarment of Burnette

— 230 — The opinion of the court was delivered by Greene, J.: Cleo D. Burnette appeals from a judgment of the district court of Sumner county disbarring him from the practice of his profession as an attorney and counselor at law. The proceeding was instituted by an accusation verified upon information and belief and filed in the office of the clerk of the district court. An order was entered that a copy of the accusation be served on the accused, and that he appear and make answer thereto on the first day of the next succeeding term. The court appointed J. A. Burnette, J. S. Dey, and W. W. Schwinn, attorneys of the Sumner county bar, to prosecute the proceeding. Burnette failed to appear or answer. Without further evidence than that furnished by the verified accusation the court rendered judgment disbarring Burnette from the practice of his profession. Within three days thereafter, and at the same term, he appeared and asked the court to set aside the judgment and to permit him to answer, alleging as grounds therefor, among other things : (1) That the judgment was rendered against him on an accusation not made under oath; (2) that such judgment was rendered without any testimony’s having been introduced on the hearing in support of the accusation. The application was overruled, and Burnette appeals. The two questions presented for our determination are : (1) Did the accusation, verified upon information and belief, give the court jurisdiction to,inquire into the charges alleged against Burnette ? (2) Is a judgment of disbarment rendered without any evidence to support the charges other than an accusation verified upon information and belief authorized by — 231 — law ? Section 399 of the General Statutes of 1901 reads as follows : “The proceeding to remove or suspend an attorney-may be commenced by the direction of the court, or on motion of any person interested. 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.” Under the provisions of this section the court may, on its own motion, direct a lawyer to draw up the accusation, and such accusation need not be verified. This section also provides that an investigation into the conduct of an. attorney may be instituted on the motion of any person interested, but such accusation must be sworn to by the person making it. These provisions are only preliminary, and are intended merely to arrest the attention of the court. Section 400 of the General Statutes of 1901 reads : “If the court deem the accusation sufficient to justify further action, it shall cause an order to be entered requiring the accused to appear and answer, on a day therein fixed, either at the same' or subsequent term, and shall cause a copy of the accusation and order to be served upon him personally.” If the court deem the accusation sufficient to justify further action it shall then take such steps as are pointed out in this section. The sufficiency and formality of the accusation are examined and passed on by the court before an order is made. The verification is not jurisdictional, and an entire absence of any verification would not render a judgment, based on a proceeding otherwise regular, void or voidable. The court had jurisdiction. This contention cannot be sustained. In opposition to the second contention of the appellant it is argued that the written accusation is a — 232 — pleading, and answers to a petition in a civil action ; that under section 128 of the civil code (Gen. Stat. 1901, § 4562 ), which provides that every material allegation in the petition not controverted by the answer shall, for the purpose of the action, be taken as true, the court was justified in rendering a judgment as upon default. To this proposition we cannot give our assent. A proceeding to disbar an attorney is mi generis — the statutory rule of evidence provided in section 128 of the code has no application. In support of the procedure had in this case, the appellee quotes section 402, General Statutes of 1901, which reads : “If the accused plead guilty, or fail to answer, the court shall proceed to render such judgment as the case requires.” It is contended that, in the absence of an answer, this section authorizes the court to accept the verified accusation as evidence of the facts charged therein, and render judgment. The provision of this section, which directs the court, in the absence of an answer, to render such judgment as the case requires does not authorize the court to proceed without evidence to render judgment as upon default in civil actions. Its provisions contemplate the regular and orderly procedure to hear, weigh and determine the-evidence, and render such judgment as the case requires. One of the charges made against the appellant is-that he was guilty of wilful and deliberate perjury. Before a court should find one guilty of so serious an offense it should be satisfied of the truthfulness of the charge by positive and direct evidence, given under the solemnity of an oath. This rule seems to have been generally adopted, and is well sustained by ad — 233 — judicated cases. In State v. Shumate, 48 W. Va. 359, 37 S. E. 618, in a disbarment proceeding, the court said: “To disbar an attorney, the evidence of the charges against him must be full, preponderating, and clear.” In the case of In re Simpson, 9 N. Dak. 379, 83 N. W. 541, it was said : “In disbarment proceedings, the contents of affidavits which have been filed as a basis for commencing such proceedings cannot be considered as evidence in support of the accusations upon the trial of the issues of fact. The accused has a right to be tried upon the evidence of witnesses who have been cross-examined or an opportunity given to do so.” In People, etc., v. Pendleton, 17 Colo. 544, 30 Pac. 1041, the court used the following forceful language : “A judgment of disbarment should be pronounced only upon clear and convincing evidence, and this rule is preeminently appropriate where, as in this case, the offense charged is cognizable by the criminal code.” In the case of In the Matter of Eldridge, 82 N. Y. 161, 37 Am. Rep. 558, it was said: “Where the alleged misconduct is denied, the affidavits and papers upon which the proceedings were instituted are not evidence upon the issues, but simply perform the office of pleadings or statements of the charges relied upon. Affidavits are sufficient to originate the proceedings, but upon the trial of the issues the common-law rules of evidence must be observed.” Again, in In re O —, 73 Wis. 602, 42 N. W. 221, the court said : “Even where the charges of professional misconduct upon which an attorney is disbarred are not of a criminal nature, they should be established by a preponderance of satisfactory evidence.” In the above-cited cases the accused appeared and denied the accusations, but this of itself could not — 234 — change the rule. The duty rests upon the court to hear and weigh the evidence before determining that an attorney is guilty of a crime for which he should be disbarred. The court must be convinced of the truthfulness of the charge, and, where the offense was not committed in its presence, the only way it can become convinced is by hearing and weighing the evidence tending to establish the fact. We think that the court has no authority, in the absence of any evidence, and solely upon the accusation sworn to upon information'and belief, to find the appellant guilty and to render a judgment disbarring him. The judgment is reversed, and the cause remanded with instructions to set aside the judgment and to proceed with the hearing. Johnston, C. J., Smith, J., concurring.