Morrison v. Snow

¶1after stating the foregoing facts,, delivered the opinion of the court.

¶2In considering the issues raised by this appeal we will first determine the questions that pertain to the main branch of the case, and then dispose of those involving the action of the trial cou,rt in striking from its files and records the allegations in defendant Alviras E. Snow’s answer against Justice Bartch.

¶3Appellants complain of and assign as error the-refusal of the court to grant them a. trial by jury.

¶4There is no merit whatever in this assignment, 1 and, were it not that counsel for appellants appear to be serious in their contention on this point, and have devoted much space in their brief to the discussion of the question, we would be disposed to pass it by *257without considering it. Counsel’s contention, as we understand it, is, first, that respondent, Morrison, had a complete remedy in an action at law, and should have pursued this remedy, and, not having done so, the appellants cannot he deprived of a trial -by jury. A party who has been induced by fraudulent representations to sell and dispose of his stock in a corporation has two remedies. He may bring an action for damages for the fraud, or he may bring .a suit in equity to have the sale set aside. Cook on Stocks & Stockh., sec. 354; Vail v. Reynolds, 118 N. Y. 297, 23 N. E. 301. Erom the very nature and character of this suit, it is evident that the legal remedy would be wholly inadequate, and that a court of equity alone can grant the relief for which the action is brought. It being exclusively an equitable action, the court did not err in refusing to submit the issues to' a jury.

¶5Appellants further allege in their assignments of error that the findings and decree are not supported by the evidence in the following particulars: First, 2they allege that the evidence shows that the truth or falsity of the alleged fraudulent representations upon which the action is based was equally within the knowledge of both Morrison and Snow, and, second, that Morrison, in disposing of his stock to Snow, acted upon his own judgment and with full knowledge of all the facts respecting the financial condition of the company and the value of the mine. The record shows that Morrison kept himself advised as to the appearance and general condition of the mine, and had some knowledge of the amount and character of the ore it was producing ; but the record also conclusively shows that he had no knowledge whatever respecting the financial condition of the company, or the value of the stock, except what Snow told him. Snow was the trusted agent o£ the company, and the man to whom Morrison had given a one-half interest in a valuable mine, and later on deeded the entire property over to him. Snow *258held the property in trust for nearly a year before the company was organized, with power to sell and dispose of it. The agreement was that, in case of a sale, the proceeds were to be equally divided between them. The nncontradicted testimony of Morrison on this point is as follows: “All I asked of him, when I made this deal, was that, if he made a dollar, he would give me half of it, and he said he would.” This shows that their relations were those of confidence and trust. Snow himself says that Morrison kept him advised as to the condition of affairs in and about the mine. Their correspondence, which is very voluminous, a portion of which is set out in the statement of facts, shows that Morrison trusted and relied upon Snow to make the enterprise a success by creating a market for the stock. In fact he had, as already stated, ..given Snow a one-half interest in the property to do this. Snow himself testified on this point as follows: ‘ ‘ Soon after the contract of April was entered into between Morrison and I, in talking over the affairs of the company, I stated to' Morrison that I thonght it would be well to list the stock on the board here after we got things in shape, and then I thought it would be well to pool our stock. ’ ’ Morrison never called for his stock, nor had it issued to him, thus showing that he was following the course outlined by Snow. Under these circumstances, and in view of the relations existing between them, Snow was both morally and legally bound to refrain from doing anything or making any representation in connection with, their business to mislead or deceive Morrison, for the purpose of advancing his (Snow’s) own interest to the injury of Morrison.

¶6The contention that Morrison had an equal or better opportunity than Snow to know and understand the financial condition and affairs' of the company and the value of the stock is not supported by the record, which shows that Morrison was a poor man, with a family, and had to keep constantly at work. He resided at a wayside station on the railroad 500 miles *259from Salt Late City, where the hooks of the company were kept and its general business transacted. Salt Lake was practically the only market where the stock could be sold. Morrison had never been in Salt Lake City, and, with the exception of a casual acquaintance he had with three or four of the stockholders, he was an entire stranger. Snow, on the other hand, was a dealer in mines and mining stock. As secretary and treasurer he kept the books of the corporation, and was its business manager, with almost absolute control 2. of the business affairs. Under these conditions and circumstances, it is idle for counsel to contend that these men were on an equal footing when the deal complained of was made. When Snow represented to Morrison that the company owed him (Snow) about $2,000, and that the ore at the mine would not pay to ship, and that an assessment was contemplated by the company, Morrison was justified in believing and acting upon such representations; and Snow cannot be heard to say that, because Morrison was nominally a director in the company, he had either actual or implied knowledge of the actual facts and conditions, and therefore he should disbelieve the agent of the company, which was composed of some of the most eminent and honorable citizens, as well as substantial business men, of this State.

¶7Furthermore, there is abundant evidence in the record that tends to show that the transaction’ under consideration was the culmination or final act of 3 a scheme conceived by Snow, weeks before, to defraud Morrison out of his stock. Baldwin testified that when he sampled the mine, and the results showed that with little effort the mine could be worked at a profit, Snow requested him not to converse with any one about the valuation of the property, as he (Snow) was desirous of purchasing more stock from a certain man who was then in the company, and that, if Baldwin would say nothing favorable in his report about the mine, he (Snow) would make it an object to *260him. At this time Morrison was the only person, except Snow, who held any considerable amount of stock in the company, and the only man in the company who was not advised of the favorable report made on the mine by Baldwin. After Snow had succeeded in getting the stock from Morrison, a shipment of ore was-made from the mine of about two and one-half tons, which netted the company $967.50. These ¡Pacts, together with the numerous misrepresentations already alluded to, which the great preponderance of the evidence shows Snow made to Morrison to induce him to part with his stock, are ample to sustain the findings and judgment.

¶8Appellant assigns as error the ruling of the trial court in striking from its files and records the allegations in the answer of the defendant Alviras E. 4 Snow respecting Justice Barteh as scandalous, malicious, and impertinent. The record shows that no evidence was introduced, nor wa.s any offered, to support the allegations which the court struck from its files and records. At and during the trial of the case the attorneys representing Justice Barteh challenged and demanded of appellants and their attorneys to prove the allegations referred to; but they declined to offer any testimony whatever, and none was offered in support of them. Evidence, however, was introduced that affirmatively and conclusively proved that Justice-Barteh never counseled, advised, or in any way influenced, or tried to influence, the- plaintiff, Morrison, to-commence the suit; and when Morrison informed the Justice that he (Morrison) intended to bring an action to recover his stock from Snow, he (Justice Barteh) advised Morrison not to commence- an action, but to settle his differences with Snow amicably. In fact, there is not one scintilla of evidence that would justify the slightest suspicion that the Justice in any way or manner used or attempted to use his personal, judicial, or any influence with Morrison, or any one connected with this suit, to .induce its commencement. Neither *261appellants nor their counsel claim that there was evidence to support a finding against Justice Bartch, or that the trial court erred in dismissing the case as to him. In the discussion of the main branch of the case they argued upon the theory that he did, as found by the trial court, advise against the bringing of the action. In support of - one of the propositions advanced by them they say: “It is little wonder that he [Bartch] advised this plaintiff not to bring this suit.” And further along in their printed argument they again declare: “Again we say, is it any wonder that Mr. Justice Bartch advised plaintiff not to bring this suit?”

¶9Counsel for the appellants do not claim that the judgment on this branch of the case should he reversed and a new trial granted. The claim'they make is that in the interest of future litigants the action of the trial court in striking the allegations referred to from the files and records should be reversed, and the objectionable matter reinstated; that is, if we understand their position, the appellants themselves were not prejudiced by the action of the trial court, and the appeal on this branch of the ease is prosecuted in the interest of some future litigant, who* may desire to spread upon the files and records of the courts of this State malicious, impertinent, and scandalous matters. The contention of •counsel, to say the least, is both novel and extraordinary; and, were it not that there are questions and principles involved in this branch of the case that materially affect the- judiciary of this State, we would dismiss the matter without further consideration. But, as the matters referred to contain grave and serious charges of misconduct, criminal in character, against a member of this court, and are made by a licensed attorney at law, who, as such, is an officer of the court, which charges the-record shows are not only malicious, scandalous, and impertinent, but absolutely false, and evidently made for no purpose except to disgrace and bring such member into disrepute, we deem it our duty to take up and consider this branch of the ,case.

¶10*262The issue thus raised is, has a court power to expunge from its files and records scandalous, malicious, and malignant matter injected therein, that raises no issue and can serve no purpose, except to harass, annoy, wound the feelings, and besmirch the reputation of the parties at whom it is aimed? In other words, must the doors of the judiciary be thrown wide open, and become a conduit through which the malevolence, vindictiveness, and offensive personalties of litigants and attorneys may be injected, and the files, 4 records, and vaults of the courts become the public repositories in which to perpetuate such scandal? Every court has the inherent power to prevent libelous, impertinent, and scandalous matter from incumbering its records. It would, indeed, be a sad commentary on our judicial system, if courts were powerless to enforce proper decorum in all proceedings before them, and compel litigants and attorneys to observé the rules of propriety and common decency in the bringing and conducting of suits. In Green v. Elbert, 137 U. S. 615, 11 Sup. Ct. 188, 34 L. Ed. 792, the court, speaking through Chief Justice Fuller, says: “We regret to find ourselves compelled to add something further. The printed argument of plaintiff in error contained many allegations wholly aside from the charges made in his complaint, and bearing reproachfully upon the moral character of individuals, which are clearly impertinent and scandalous, and unfit to be submitted to the court. It is our duty to keep our records free from scandal. The brief of plaintiff in error will be stricken from the files, and the writ of error dismissed; and it is so ordered.” In Johnson v. Brown, 13 W. Va. 153, the court, in considering this question, said: “The court of its own motion, in aid of public morals, is bound not to permit its records to be made the means of perpetrating libelous and malignant slanders, but should interfere to .suppress such indecencies, which may stain the reputation and wound the feelings of the parties, their relatives and friends.” In 19 Ency. Pl. and Pr., *263199, it is said: ‘ ‘ Courts have inherent power to protect their records by striking out or expunging scandal and impertinence.” See cases cited. The findings, conclusions, and decree of the court are fully sustained ia every particular on this branch of the case', and the-trial court did not err in striking from its files and records, as malicious, impertinent, and scandalous, the matters referred to.

¶11The allegations of Alviras E. Snow’s answer here-inbefore set out contain charges against Justice Bartch of criminal conspiracy as defined by our statutes, 5 for which, if true, he could be impeached and removed from office. We have made a thorough and careful examination of the record in this case, and fail to find any evidence whatever respecting Justice Bartch that would justify the most vague or slightest suspicion of impropriety on his part respecting the commencement and prosecution of this action. No explanation was made in the trial court why these groundless and sweeping charges were made, and none has been offered in this court. Counsel for appellants, referring to these allegations in their, printed brief filed in this court, say: “But we do claim, and it cannot be controverted, that there was evidence introduced tending very strongly to prove the said allegations. The summary of the evidence on this point is as follows: Bartch advised with plaintiff about bringing this suit while in Nevada, and corresponded with him on his return'to Salt Lake City. When Morrison came to Salt Lake City to bring this suit, he went to Bartch’s house every day until it was brought — a period of five or six days.”

¶12The only evidence on this point, as shown by the record (the official transcript of the reporter’s notes), is that given by Morrison, and is as follows: “ Q. Did he [Bartch] advise you to bring suit? A. No. sir; the contrary. Q. He didn’t advise you not to sue? A. Yes, sir. Q. Did you tell Judge Bartch you were going to bring suit? A. I told him I thought T would bring suit. Q. Did he procure counsel for you? A. *264No, sir. Q. Did lie write you about it? A. No, sir. Q. You saw Mm here? A. I saw him at Ms bouse. Q. You went to see Mm before bringing suit? A. I went to pay my respects to Mm. Q. ■ You went to see Mm before bringing suit? A. Yes, sir; three or four, or five or six days before. Q. TIow many times did you go to Ms bouse to see him? A. I have no recollection. Q. Four or five or six times? A. I expect so — as often as convenient. . . . Judge Bartch advised me not to sue. He asked me to see Mr. Snow, and he thought it could be straightened out and avoid a lawsuit; that a lawsuit would be expensive, perhaps, to a man in my circumstances, and that Mr. Snow was on the ground himself, and he had the benefit of legal knowledge himself, and I would have to buy and pay for it.”

¶13The foregoing is the evidence to which we are referred by counsel for appellants in their brief to support the allegations that Justice Bartch confederated and conspired with Morrison, and used his judicial influence with him to induce him- to commence this suit, and that the fruits of the litigation, if any, were to be divided between them.

¶14, Section 110. Revised Statutes, provides: “Every 6 person, on his admission, must take an oath to support the Constitution of the United States, and the Constitution of this State, and to faithfully discharge the duties of an attorney and counselor to the best of his knowledge and ability.”

¶15Section 113, Revised Statutes, provides, so far as material here: “ (2) To maintain the respect due to the courts of justice and judicial officers.(4) To employ, for the purpose of maintaining the causes confided to him, such means only as are consistent with truth, and never to seek to mislead the judges by any artifice or false statement of fact or law. . . . (6) To abstain from all offensive personality, and to advance no fact prejudicial to the honor or reputation of *265a party or a witness, unless required by the justice of the cause with which he is charged.”

¶16Section 120, Bevised Statutes, provides: “An attorney and counselor may be removed or suspended by the Supreme Court, and by the district courts, for either of the following causes, arising after his admission to practice: . . . (2) Willful disobedience or violation of an order of the court requiring him to do or forbear an act connected with or in the course of his profession, and any violation of the oath taken by him ■or of his duties as such attorney and counselor.”

¶17Attorneys are officers of the court, and as such the law imposes upon them certain duties, one of which is ~to uphold and maintain the dignity of the court, and refrain from all offensive conduct that would have a tendency to bring it into disrepute, or weaken the. confidence that the people have always reposed in the judiciary. These are duties and obligations that attorneys must recognize and observe, both in and out of court. We do not wish to be understood that courts and judicial officers are exempt from.fair and respectful criticism by members of the legal profession, or that in their' individual capacity judges possess any civil or legal right that is not guaranteed to every other citizen. They owe the same duties to society, and are subject to the same restraint, as the balance of their fellowmen. They can sue and be sued on matters relating to their private •or individual transactions and business affairs, and the courts have no more or greater regard for their welfare than they have for the interests of other litigants; and attorneys have the same freedom in commenting on and dealing with them as litigants as are allowed in the trial of cases generally. But attorneys have no right, and it is in violation of their sworn duties as officers of the court for them, either as counsel or litigants in a judicial proceeding, to knowingly, as in this case, make false and defamatory charges against a party, be such party a judge or private citizen, that would tend to humiliate, wound his feelings, or degrade, him in the community *266where he resides or is known. When such charges are made against a judicial officer, their pernicious consequences are twofold. They not only affect him and his standing in the community as-an individual, but they tend to bring the judiciary into disrepute, and thereby interfere with the administration of justice, which it is their sworn duty to advance and uphold.

¶18Therefore, in the interest of good government and 7 the protection of individuals and their own dignity, it is absolutely necessary that courts exercise their power, not only to compel their officers to perform their duties in accordance with law and proper decorum, but to revoke the license of an attorney when his conduct is reprehensible, and he acts in violation of the statute, and when his retention as an officer would become a reproach to the court and a menace to- its dignity and usefulness. “The proceeding’ is not for the purpose of' punishment, but for' the purpose of preserving the courts of .justice from official ministration of persons unfit to practice in them. Undoubtedly the power is one that ought to be exercised with great caution and ought never to be exercised except in clear cases of misconduct, which affect the standing and character of the party as an attorney. But when such a case is shown to exist, the court ought not to hesitate, from sympathy for the individual, to protect themselves from scandal and contempt, and the public from prejudice, by removing grossly improper persons from participation in the administration of the law. The power to- do this is a rightful one, and, when exercised in proper cases, is no violation of our constitutional provisions. ’ ’’ Ex parte Wall, 107 U. S. 265, 2 Sup. Ct. 569, 27 L. Ed. 552. In State ex rel. McCormic v. Winton, 11 Or. 456, 5 Pac. 337, 50 Am. Rep. 486, the court say: “Justice to the court, protection to- the public, and the honor of his profession alike reasonably demand that he act with fidelity and honesty to the interests intrusted to his care. Whenever, therefore, it is made to appear to the satisfaction of the court that an attorney has been guilty of *267conduct or acts, committed inside or outside of his professional employment, which show him to he utterly unfit to practice law and to participate in the official administration of justice, the court will exercise' its summary powers to disbar him.” In Weeks on Attorneys at Law, p. 154, the author says: “The court, too, has the power, on the ground of self-protection, outside of the common law, and outside of statutory doctrine of contempt, in cases where an attorney has shown himself unfit to he one of its officers; and such unfitness may he displayed, not only hy moral delinquency, hut hy acts calculated and intended to injure the court.” And again: ‘‘It is necessary for the protection of the court, the proper administration of justice, the dignity of the profession, and for the public good and the protection of clients.”

¶19In the case under consideration the charges made against a member of this court, as shown hy the record, were evidently intended to reflect not only upon his private character as a private citizen, hut upon his character and conduct as a judicial officer. These accusations having been made without any pretense of justification hy a licensed attorney and his counsel, who are also officers of the court, the act was not only unprofessional, but in direct violation of the foregoing provisions of the statute. It is therefore ordered that a citation issue from this court to appellant Alviras E. Snow, W. H. Wilkins, and J. M. Bowman, requiring said parties, and each of them, to appear in this court, at the adjourned term, October 1, 1903, to show cause, if any they have, why their license as attorneys at law to practice in the courts should not he revoked for unprofessional conduct and the violation of their sworn duties as attorneys at law, or that such other proceedings.he taken as may he meet in the premises.

¶20The judgment of the trial court is affirmed; costs to he taxed against appellants.