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The State ex rel. v. Maxwell-Opinion of Court.

and given to me by said J. P. Jones, Esq., at the time he furnished the evidence as aforesaid, said memorandum being in his handwriting, and to which I attached my certificate merely to show what evidence was before me as is often done in similar circumstances; that the certificate of the clerk hereto attached marked "A" as a part hereof will explain to your honors how the language used by him in refcrence to the evidence came to be used, and may possibly explain also how the petitioner came to be misled in his charge against me as to giving and filing evidence, there being no other foundation for such a charge. Respondent says also that the foregoing statements cover all the other allegations of petitioner material to be answered; and he submits that they show sufficient cause to entitle respondent to be hence dismissed without further answer. But your respondent out of abundant caution begs to submit for further cause the papers and evidence marked 1, 2, 3, 4, 5, 6, 7, 8 and 9, on which he acted in rendering the decree disbarring petitioner, except that as to the answer to the rule for contempt, a certified copy instead of original is given here as paper marked 4, and as to his answer in divorce suit of Kirk vs. Kirk, which was filed after the answer to the rule had been endorsed by me denying fully the charges made against me, and which substantially repeated the charges, respondent gives a copy marked exhibit "C" attached to his answer in the disbarment case. And respondent submits that the said papers and evidence show ample cause why the petitioner should not be restored to his office of attorney-at-law.

To this return the relator files a demurrer and set up for grounds of demurrer

First, That it does not contradict or impair the legal force of a single allegation in the alternative writ.

Second, That it is argumentative and does not take issue on any material allegation in said writ.

The State ex rel. v. Maxwell—Opinion of Court.

Third, That it does not show cause why said writ was rot obeyed.

Fourth, That it is not sworn to.

This is the case as presented by the alternative writ, the return and demurrer thereto, except that we have not deemed it necessary to insert the exhibits filed by the parties by the relator with his petition, and by the respondent with his return, &c. We refer to them subsequently. That a plea or return is not sworn to, is not a ground of demurrer.

The remedy in a case where such verification is required, and whether it is necessary here or not we do not decide, as it is unnecessary, is by motion to strike out.

This point of practice was settled in this State in the case of Hagler vs. Mercer, 6 Fla., 344. By reference to the alternative writ the allegation here is that the judgment was entered without due hearing, and contrary to the forms of practice. The want of conformity to the rules of practice is alleged to have been that no replication was filed to the answer to the rule to show cause. This is not denied by the answer, and the record shows such to be the fact. Without deciding whether, if such a replication was necessary, a want of it in a case of this character would entitle an attorney to restoration to the rolls, other things being regular, and a case of improper conduct being shown, it is clear that in a proceeding of this character a replication to the answer to the rule is unknown.

The proceeding to disbar an attorney is special, of a summary character, and as to the method of practice and pleading is not controlled by the same rules in every respect that an ordinary common law action is, and one of the respects in which there is a difference, is that a replication to an answer is unknown to such proceeding.

Upon the coming in of an answer in a proceeding of this

The State ex rel. v. Maxwell-Opinion of Court.

character, the motion of the movant is to make the rule absolute, and that of the respondent is to discharge it, and the introduction of testimony is proper without any further pleading. Says Lord Tenterden in Ex-parte Bayley 9, B. and C., 691, in speaking of the jurisdiction of courts in the matter of the control of attorneys. "The court exercises a jurisdiction over attorneys, and that is to be exercised according to law and conscience, and not by any technical rules." Ex-parte Brownsall, 2 Cow., 289; 1 Yerger, 231; Tom. Law Dic., 593; 22 Ark., 157; 36 N. Y., 651. As a matter of course he is entitled to notice, and to a hearing if he desires to be heard. Here the relator abandoned the case upon the filing of this answer.

The view of the relator here, that the matter upon the coming in of the answer was not in issue, is therefore erroneous, and the only questions which remain to be considered are the regularity of the introduction of the evidence, and whether a case is made where the court has decided erroneously upon the testimony, and a plain case of wrong and injustice is shown.

We had occasion in the case of the State of Florida er rel. J. Dennis Wolfe vs. William Kirk, 12 Fla., 278, to examine this whole subject, and our views at length may be seen by reference to that case.

The return to which this demurrer is interposed, and which we must take to be true, states the facts to be that the relator was represented by counsel who presented his answer, and stated that it was all that the relator "had to submit in the case." that the Judge then said: "Let me have the papers and the evidence, gentlemen," whereupon J. P. Jones, Esq., representing the rule, said, "the evidence for the petitioner is mostly in the files of your court, that and some letters of the respondent, I will furnish;” and that "all the evidence, including the letters referred to

The State ex rel. v. Maxwell-Opinion of Court.

meaning thereby two letters from the relator to his wife. in reference to the loss of the papers in a divorce suit, instituted by his wife against him), was furnished to the court with the papers by the petitioner in that case.

The petition which was the basis of the proceeding to disbar was based upon judicial proceedings in which the relator was a party, and the record of which was to be found upon the files of the court, the petition setting up that "all of said matter will appear in the records on file" in the Circuit Court Clerk's office.

It is thus seen that the relator here was by the petition advised of the nature of the accusation and of the evidence proposed to be introduced to establish it, and that such evidence was in the records of the court.

In addition to this the respondent in his answer to the petition to disbar him admitted that he made the charge of combination and other matters as hereinafter stated by making the records which contained them exhibits to this

answer.

The

We can discover nothing irregular in the practice here followed. The court acted for the most part upon the admissions of the relator himself. This brings us to the consideration of the charge and the evidence which was made the basis of the judgment disbarring the relator. judgment of the court and its recitals are as follows: "This case coming on to be heard on petition, answer and evidence, and having been submitted by counsel of the respective parties without argument, and it appearing to the court that the papers in the case Georgianna E. Kirk vs. William Kirk were taken from the office of the clerk of this court by the respondent after said case was set for final hearing and have not been returned, and that he has given no satisfactory excuse for not returning said papers, and that his character as an attorney is not relieved of

The State ex rel. v. Maxwell—Opinion of Court.

blame because said papers were taken from the office by him as 'respondent' in said cause and not in his capacity of attorney; and it further appearing that in answer to a rule for contempt in a new suit between the said G. E. Kirk and the respondent now pending in the court the respondent did charge the Judge of this court with improper complicity with the said G. E. Kirk and others in the bringing of said suit, and when in open court the said Judge demanded to know of respondent whether said charge was made by him in said answer the respondent then acknowledged and persisted in said charge; and further, after the said Judge had endorsed on said answer a full denial of said charge, that the respondent did substantially repeat the same in his answer to the bill of said. G. E. Kirk in the suit aforesaid." Then follows the forinal part of the judgment.

Upon an examination of the record it appears to fully sustain the recitals of this judgment. A suit had been instituted by the wife of the relator against him to obtain a divorce. In the relator's answer he charged that the suit was not instituted by his wife of "her free will or desire, but by a combination of persons for the purpose of injuring this respondent, and to settle and adjust property relations of said wife in disregard of facts and law of the case and of the injury it would inflict upon the heretofore good name of respondent, and of the legal stigma it would fasten upon the name of his innocent and helpless child, and which said combination, as heretofore named and set forth, did influence and coerce my said wife into bringing this suit, and that aside from said combination and influence she is to me a loving wife, and to her said child a loving mother.

"That the following persons, some from premeditated will and others from acquiescence, form said combination, and took part and influenced same in manner here

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