In Re Hittson , 39 Cal. App. 91 ( 1918 )

Petitioner seeks to be discharged from the custody of the sheriff of Los Angeles County by whom he is held under a writ of commitment issued by the superior court. The proceeding in which the writ of commitment was issued was one for contempt. On October 2, 1918, by judgment of the superior court, this petitioner was disbarred from practicing as an attorney in all the courts of the state. On October 21, 1918, an affidavit was presented to the superior court wherein the affiant set forth the substance of the disbarment proceeding and deposed further that petitioner, during the month of October, had as attorney commenced five suits in the justice's court of Los Angeles township and had during the same month conducted two examinations of judgment debtors in the same court. With that affidavit as a foundation, the court proceeded to a hearing and adjudged petitioner guilty of a contempt because it appeared that since the entry of judgment of disbarment petitioner had "been practicing in the justice courts." We wish particularly to point out that the accusing affidavit upon which the contempt proceedings were founded contained no statement charging that the petitioner had in any wise held himself out as an attorney at law or done any act, except to file suits in the justice's court and there appear for the two examinations mentioned.

But one question is presented by counsel appearing in this proceeding, that being as to whether a judgment of disbarment, general in its terms, may operate to prevent the accused from appearing as attorney in a justice's court. Section 842 of the Code of Civil Procedure provides as follows: "Parties in justices' courts may appear and act in person or by attorney; and any person, except the constable by whom the summons or jury process was served, may act as attorney." It is, of course, at once conceded that had the petitioner here not pretended to act generally as an attorney at law, but only to appear in the justice's court under the permission given by the section just referred to, and had he been without license as an attorney, no ground would have been afforded for disbarment proceedings. Counsel for respondent, however, suggests that the judgment followed section 299 of the Code of Civil Procedure and by its terms precluded petitioner (theretofore a licensed attorney) from practicing as attorney in all the courts of the state. The question is as to whether by the proceeding of disbarment provided in section 289 et seq., of the Code of Civil Procedure, it is intended that the court by its decree shall be authorized to do more than take away all of the privileges conferred upon the holder of a license to practice law. As we read the sections, they mean nothing more. Referring back to section 277 of the Code of Civil Procedure, we find that an applicant for admission to practice upon examination, or upon certificate from another state, when admission is allowed, is admitted as attorney and counselor "in all the courts of this state." Section 299, which has already been referred to, provides that the judgment of disbarment shall be that the accused "be precluded from practicing as such attorney or counselor in all the courts of this state," using the precise language which is found in section 277, ante, referring to the admission of applicants. Where the phrase is used in the latter connection, it naturally means that the applicant is admitted to practice in all the courts wherein a license is first required. Such certificate in no wise restricts or enlarges the right of a person to appear as attorney for another in a justice's court. If such is the case, we can find no room for plausible argument sustaining the contention that when judgment of disbarment is entered it does more than take away the rights granted by the order of admission to practice. Without doubt the legislature would have the right to provide that any person who had been disbarred from the practice of law should be ineligible to appear in a justice's court to represent another, and we venture the suggestion that such legislation is both appropriate and desirable; and we do not intimate that a justice's court may not possess inherent power to refuse to allow a person to appear as attorney for a litigant where such person is known to be dishonest or of disreputable character. Counsel for respondent has cited a New Mexico decision which seems to sustain his view (State v. Marron, 22 N.M. 632, [167 P. 9]). In so far as it does serve that purpose, we do not concur in its reason or logic. There is a dissenting opinion in the same case. On the other hand, we find in the case of Danforth v. Egan, 23 S.D. 43, [139 Am. St. Rep. 1030, 20 Ann. Cas. 418, 119 N.W. 1021], expressions indicating a contrary view to that expressed by the two judges of the New Mexico court. We have taken this case as it is presented upon the one proposition argued by counsel and illustrated by the facts stated in the affidavit which formed the basis for the contempt proceeding. The case so made, in our opinion, must be resolved in favor of the petitioner.

It is ordered that petitioner be discharged from the custody of the sheriff.

Conrey, P. J., and Myers, J., pro tem., concurred.