Ex parte Cashin

Holden, J., delivered the opinion of the court. This is a disbarment proceeding started before Judge Davis in the circuit court of Humphreys county to disbar the appellant, J. M. Cashin, a member of the bar of that county, by information presented by a committee of the county bar association. The information, in several different counts, charges the appellant with misbehavior and misconduct as an attorney, and seeks disbarment under — 231 — the statute (section 223, Code of 1906 [section 200, Hemingway’s Code]). The information was presented to the circuit judge and filed with the clerk in vacation. The judge issued a citation to the appellant commanding him to appear before the circuit court of Humphreys county at the next regular term to answer the charges presented and show cause why he should not be disbarred. The citation was signed by the judge, and not the clerk of the court, and was served, together with a copy of the charges in the information, by the sheriff more than thirty days before the appearance day. After service of the citation, and before the return day, appellant filed with the clerk a list of witnesses to he subpoenaed in his behalf. When court convened, and the cause against appellant Avas called for hearing, he failed to answer or appear, and Avas not represented by counsel, but intentionally absented himself from the court, for Avhich no excuse of fact was offered so far as this record ghows. On the second day the cause proceeded to a hearing, and evidence Avas submitted to the court to sustain the charges set out in the information; Avhereupon a judgment of disbarment Avas rendered against the appellant, from which this appeal is prosecuted. The appellant presents tAvo points for reversal Avhich merit consideration and discussion. They are: First, that the court had no jurisdiction to render judgment-against appellant in his absence, because he had no legal notice, in that, he Avas not served Avith a summons issued by the clerk as provided by statute (section 3912, Code of 1906 [section 2919, Hemingway’s Code]), which reads as folloAvs: “The style of all processes shall be, ‘The State of Mississippi,’ and it shall not be necessary that any process bear teste in the name of any judge or of any term of the court, but all process, except where otherAvise provided, shall be issued and signed by the clerk of the court, with the seal — 232 — of his office affixed, and shall bear date of the day on which the same shall be issued.” Second, that if a citation signed by a judge, instead of the clerk, is a lawful summons, then the citation in this case is void 'because it was issued by the judge in vacation, is not process issuing from a court, and appellant was not legally required to appear. We have no statute prescribing the method of procedure in disbarment proceedings, nor have we any law imposing restrictions upon the courts as to the procedure to be adopted in such cases. Therefore we must look to the general principles and rules announced and followed by the courts of other jurisdictions, together with what little local law we have on the subject. As to the first point made by appellant, we think the contention would be sound if this were an ordinary suit at law; but we are of opinion that the statute requiring that process in all cases be issued by the clerk does not apply to a disbarment proceeding, for the reason that a proceeding to disbar an attorney is neither a civil nor a criminal action, its purpose is not to punish, but to annul the right of the attorney to practice, which is for the protection of the court; and this is true even though the disbarment should incidentally result in the punishment of the attorney by depriving him of the right to practice. It is a proceeding mi generis, on account of the relation of the attorney to the court; that is, he being an officer of the court, the judicial power lies with the court to proceed, for its own protection, to disbar upon a proper showing made, provided always that the attorney shall have reasonable notice' of the charge in order that he may appear and defend, and so that the proceeding will be without oppression or injustice. The court already having jurisdiction of its attorneys, its officers, the citation by the judge was reasonable and sufficient notice to obtain jurisdiction to try appellant and disbar him. In the case of In re Durant, 80 Conn. 140, 67 Atl. 497, 10 Ann. Cas. 539, the court said: — 233 — “The power to declare this forfeiture is a summary one inherent in the courts, and exists not to mete out punishment to an offendent, but that the administration of justice may be safeguarded and the courts and the public protected from the misconduct or unfitness of those who are licensed to perform the important functions of the legal profession. Ex parte Bradley, 13 Wall. (U. S.) 364, 374; Fairfield County Bar v. Taylor, 60 Conn. 11, 12, 22 Atl. 441; Bar Assoc. v. Greenhood, 168 Mass. 169, 46 N. E. 568; Ex parte Brounsall, 2 Cowper, 829. “The action of the court in the exercise of this power is judicial in its character, but the inquiry made is fin the nature of an investigation by the court into the conduct of one of its own officers, not the trial of an action or suit,’ and the order entered is but an exercise of the disciplinary jurisdiction which it has over such officers. Fairfield County Bar v. Taylor [supra] ; Ex parte Garland, 4 Wall. (U. S.) 333, 378 ; In re Hardwick, 12 Q. B. 148, 149. The real question for determination, in such proceedings, is whether or not the attorney is ‘a fit person to be longer allowed the privileges of being an attorney.’ Fairfield County Bar v. Taylor, 60 Conn. 11, 16, 22 Atl. 441. Into its determination there naturally and necessarily enters a large measure of judicial discretion. Fairfield County Bar v. Taylor [supra] ; Ex parte Burr, 9 Wheat. (U. S.) 529, 530 ; Ex parte Secombe, 19 How. (U. S.) 9, 13 ; Ex parte Wall, 107 U. S. 265, 273, 2 Sup. Ct. Rep. 569 ; In re Davies, 93 Pa. St. 116, 121 ; Miles v. Stevenson, 80 Md. 358, 365 [30 Atl. Rep. 646]. This discretion, however, is not an absolute one, so that an attorney may be removed from the bar without notice of the charges against him and an opportunity to be heard, or so that the power of disbarment may be exercised arbitrarily, despotically or at the pleasure of the court, or from passion, prejudice, or personal hostility. The power is rather pne to be used with moderation and caution, and the discretion one to be reasonably exercised. The attorney is, in other Avords, entitled to a fair hearing or opportunity to be heard, and a fair determination of — 234 — the question at issue, in the exercise of a sound judicial discretion. Fairfield County Bar v. Taylor [supra] ; Ex parte Secombe, 19 How. (U. S.) 9, 13 ; Ex parte Burr, 9 Wheat. (U. S.) 529, 531 ; Ex parte Garland, 4 Wall. (U. S.) 333, 378 ; Ex parte Bradley, 7 Id. 364, 375. “In che absence of prescribed regulations the manner of the proceeding, so that it be without oppression or injustice, is for the court itself to determine. Fairfield County Bar v. Taylor [supra] ; Randall v. Brigham, 7 Wall. (U. S.) 523, 540.” As to the second ground urged for reversal, we think that, while, technically speaking, the summons should have been issued by the clerk, or the appellant should have been cited to show cause under a rule made by the court while in session, still it is our judgment that the citation issued by the judge in vacation, or in chambers, was sufficient notice to maintain jurisdiction to try the cause, for the reason that the attorney was an officer of the court, and in that sense the court already had jurisdiction over him. The rule in other jurisdictions seems to be that, where the essential requirement of notice has been complied with, the court is warranted in proceeding to a final hearing of the proceedings. The court has the poAver to protect itself against an unfit attorney, an officer of the court, and may hear the charges in order to purge the roll of his name, upon reasonable notice given of the time of the hearing of the charges presented for disbarment, thus affording an opportunity to be heard. The exercise of the poAver of the court in hearing and determining Avhether the attorney shall be disbarred is not in contravention of the constitutional right of tidal by jury. It is an exercise of judicial poAver in the regulation of the court’s oavu officers, and to protect and preserve a clean and proper functioning of the tribunal. In the case at bar the appellant was cited to appear and defend the charges against him more than thirty days before the return day. We think this was reasonable notice, Avas due process, and in this particular character of pro — 235 — ceeding it was legal and sufficient to require the appellant to appear and answer the charges. The record discloses that the appellant was notified in ample time to appear and contest the proceedings, but for some reason not shown in the record he purposely declined to appear and make any defense in the cause. The testimony, we assume, being-adequate to support the finding of guilt, we are of the opinion that the judgment of the court below should be affirmed. 2 R. C. L. 1086, 1103, 1104, 1106, 1107; 10 Ann. Cas. 542; 6 C. J. pp. 580-602, 604, 608. In the Matter of Ebbs, 150 N. C. 44, 63 S. E. 190, 19 L. R. A. (N. S.) 892, 17 Ann. Cas. 596, the court said: “ Tf a good, moral character is indispensable to entitle one to admission to the bar, it is obvious that the necessity for its continuance becomes enhanced by the conflicts, excitements, and temptations to which the practitioner is daily liable. For his official misconduct there is no power of removal but in the court. This power is therefore at once necessary to protect the court, preserve the purity of the administration of justice and maintain the integrity of the bar. . . . It is a mistaken view of this subject, as the foregoing authorities show, to conclude that an attorney at law can only be disbarred for acts done “in his office as attorney” or “with the courts” in the term of his oath of office. On the contrary, an attorney may be guilty of disreputable practices and gross immoralities in his private capacity and without the pale of the court which render him unfit to associate with gentlemen, disqualify him' for the faithful discharge of his professional duties, in or out of court, and render him unworthy to minister in the forum of justice. When such a case arises, from whatever acts or causes, the cardinal condition of the attorney’s admission to the bar, the possession of a “good moral character,” is forfeited, and it will become the solemn duty of the court, upon a due presentment of the case, to revoke the authority it gave the offending member as a symbol of legal fitness and moral uprightness, lest it should be exercised for evil or tarnished with shame.’ Whipple, C. J., in Re Mills, 1 — 236 — Mich. 393, says: ‘Should this court, after being officially advised that one of its officers has forfeited the good name he possessed when permitted to assume the duties of his office, still hold him out to the world as worthy of confidence, they would, in my opinion, fail in the performance of a duty cast upon them by the law. It is a duty they owe to themselves, to the bar, and to the public to see that a power which may be wielded for good or for evil is not intrusted to incompetent or dishonest hands. The extreme judgment of expulsion is not intended as a punishment inflicted upon the individual, but as a measure necessary to the protection of the public, who have a right to demand of us that no person shall be permitted to aid in the administration of justice whose character is tainted with corruption.' Ex parte Smith, 28 Ind. 47 ; Fletcher v. Daingerfield, 20 Cal. 427.” Affirmed.