The State ex rel. v. Maxwell-Syllabus. directed to said Judge, commanding him to desist from further proceeding in said cause by a trial de novo. The respondent answers that the laws confer upon the Circuit Courts the power to try causes appealed from Justices' courts de novo upon issues of fact by a jury. This is substantially a demurrer to the suggestion. The questions presented are decided in the case of The State ex rel. Wallace against Judge Baker at the present term. The cause should be heard by the court on the appeal as upon a common law writ of error, if the appeal is regularly perfected. The writ of prohibition is granted commanding the respondent to desist from further proceedings in said cause by trial de novo; and, inasmuch as the case is one involving public interest, and the respondent is a judicial officer of the State, the costs herein will be taxed against the State. THE STATE OF FLORIDA EX REL. WILLIAM KIRK, vs. A. E. MAXWELL, JUDGE OF THE CIRCUIT COURT. I. The question, whether a return to an alternative writ in a mandamus proceeding should be sworn to, is not raised by a demurrer thereto. The remedy in a case where a pleading should be sworn to and is not, is a motion to strike it out. 2. The proceeding to disbar an attorney is special, of a summary char acter, and as to methods of practice and pleading, is not controlled by the same rules in every respect, that prevail in ordinary common law actions. One of the respects in which it thus differs is that a replication to the answer to the rule to show cause is unknown to such proceeding. Upon the coming in of such answer the motion of the movant is to make the rule absolute, and that of the respondent is to discharge the rule, and the introduction of testimony is proper without a replication. The State ex rel. v. Maxwell-Syllabus. 3. Where a respondent to such rule submits the case upon the filing of his answer by stating through his counsel that it was all that he had to submit in the case, and the party representing the rule in submitting the case says to the Judge, that the evidence for the petitioner is mostly in the files of your court, that and some letters of the respondent I will furnish, and all of the record evidence, and two letters from the relator to his wife, written by him to her in reference to the loss of the papers in a divorce suit, instituted by his wife against him, which papers were last traced to his possession, and the writing of which letter he did not deny, were furnished to the court by the petitioner, and the proceeding to disbar was principally based upon judicial proceedings in which the relator was a party, and the records of which were to be found upon the files of the court, and the respondent in his answer to the rule to disbar admitted the acts principally charged against him by making the records which contained them exhibits to his answer, the court properly treated as evidence such records. 4. This court will not interfere with the action of the Circuit Court in the matter of summary proceedings to disbar an attorney upon the ground that its conclusions as to the testimony are erroneous, unless a plain case of wrong and injustice is shown. The State ex rel. Wolfe vs. Kirk, 12 Fla., 278, referred to and approved. 5. In this case the attorney had received from the files of the court the papers in a divorce suit instituted by his wife against him, and while he admitted their loss or destruction by a friend, he failed to account for them, even to the extent of giving the name of this friend. He, also, during the progress of the suit for divorce, repeatedly accused the chancellor of being one of an alleged combination against him to control his property, averring substantially that his wife did not institute the suit for divorce of her free will or desire, but was induced so to do by a combination of persons, one of whom he averred the chancellor was. The chancellor in his presence disavowed any such conduct. The attorney offered no proof of his charge, but persisted in it. Under such circumstances the court properly disbarred the attorney, such action being necessary to preserve its own respect and to enforce respect from, and proper conduct on the part of its offi cers. This is a case of original jurisdiction in the Supreme Court. The State ex rel. v. Maxwell-Opinion of Court. The facts are sufficiently stated in the opinion. John A. Henderson and Wm. Kirk, in pro per., for Relator. J. E. Yonge, for Respondent. MR. JUSTICE WESTCOTT delivered the opinion of the court. This is a proceeding by mandamus wherein the relator seeks a peremptory writ to restore him to the office, rights and franchises of an attorney and counsellor at law and solicitor in chancery, of which he has been deprived by the judgment of the Circuit Court of the State of Florida for the First Judicial Circuit. The alternative writ alleges that this judgment was rendered "without due hearing and contrary to the forms of practice and the laws of the State," and of the Judge rendering the judgment that it was "in neglect of his duty in the premises as such Judge:" that the said Judge did in a spirit of prejudice and antagonism to petitioner prosecute and conduct said suit and file and give testimony in the same, and did determine the same contrary to the law and the facts in neglect of and in violation of his duty; that in the spring of 1880 the said Judge, upon the petition of J. P. Jones, issued a rule to petitioner to show cause why he should not be disbarred (a copy of which is made an exhibit); that petitioner on rule day made full answer to said petition and rule in a written answer sworn to and filed, and submitted the same without argument; that no replication was made or issue joined thereon; that the case as submitted on petition and answer was continued from term to term; and as this petitioner believed and was informed that his answer was sufficient in the premises, he gave no attention to the case until informed on the streets of Pensacola that said 2-19th Fla. The State ex rel. v. Maxwell-Opinion of Court. Judge had entered the decree against him; that several weeks after the entering of said decree petitioner learned that said Maxwell had filed and given some testimony in the case, to-wit: that he had filed two letters obtained from the wife of petitioner and a certificate of his own; that it does not appear when the same was filed in the case, the minutes stating "that on another day came the court and filed the following testimony, &c. ;" that, as will appear from the decree, it was based upon said testimony and certificate of said Judge of which petitioner had no knowledge until as stated; that it is not true, as recited in said decree, that petitioner submitted said testimony if that be implied by "submitted by counsel of respective parties;" "that after he submitted his answer to the rule he had no counsel, the record shows none, and none were authorized to act for him in such submittal of case or testimony, and that in fact no such submittal was made and petitioner had no knowledge of testimony, hearing or decree until after decree; that said letters submitted by the court could have been explained as not applicable to the case, and said certificate of the court could have been shown to be incorrect; that said A. E. Maxwell was not under oath when he gave said testimony, but was in a high state of prejudice against petitioner." A certified copy of the record of the judgment disbarring the relator is made an exhibit to the petition for mandamus. To the foregoing alternative writ respondent answers: That it is not true, as alleged in the petition, that respondent entered a decree disbarring petitioner without due hearing and contrary to the forms of practice, and that the facts are that the petitioner, by R. L. Campbell, Esq., attorney-at-law, presented his answer in open court at the Spring Term, 1880, and had the same filed April 29th, and that the said Campbell, as attorney, then and there The State ex rel. v. Maxwell-Opinion of Court. submitted said answer, expressly stating that it was all that the petitioner had to submit in the case, and the case was then and there submitted for decision, both sides stating that they did not desire to make argument, whereupon respondent, as Judge, then and there said, "let me have the papers and the evidence, gentlemen," or words to that effect; that the petitioner in that case, J. P. Jones, Esq., then and there said, "the evidence for the petitioner is mostly in the files of your court, that and some letters of respondent (Kirk) I will furnish, or words to that effect;" that the case was thereupon taken under advisement by respondent and so held until the adjournment of the term which was shortly afterwards; but being then unable to announce a decision for want of time to consider the matter sufficiently, respondent continued the case; that at the next term of the court (February, A. D. 1881,) being adjourned Fall Term, the case being still under advisement, the decree referred to by petitioner was rendered; that it is not true, as petitioner alleges, that respondent "did in a spirit of prejudice and antagonism to him prosecute said suit and file and give testimony in the same;" that respondent did not prosecute the case at all, nor did he give any testimony in it; that he acted solely as Judge and court, and he hopes and believes that he is incapable of conducting any suit as Judge in a spirit such as the petitioner wrongly attributes to him in that case; that as to the filing of any testimony respondent says that all the evidence, including the letters referred to, was furnished him with the papers by the petitioner in that case, J. P. Jones, Esq., at or about the time the case was submitted to respondent for decision as hereinbefore stated, and that upon rendering the decree against petitioner herein respondent returned to the clerk the papers in the case with the evidence furnished as aforesaid, accompanied by a memorandum of the evidence made |