
    W. D. Dillon v. The State.
    Wheie the entry of judgment in a suit for a divorce recited that a verdict was found in favor of plaintiff, whereupon the attorney (naming him; for plaintiff moved the court for a decree of divorce and informed the court that he had not been employed by the plaintiff to bring the suit,” &<?., the attorney was ruled to show causo why he should not bo stricken from the roll: Held, That the record in the suit for divorce was incompetent to prove the admissions of (he respondent recited in tho entry of tho judgment.
    A case in which it was held that an attorney was properly stricken from the roll for representing a plaintiff iu a suit for divorce without authority. '
    Appeal from Polk. In tins case a rale was entered against the appellant at the relation of Samuel D. Hay and W. C. Abbot, esquires, two attorneys and counselors of the courts of tho State, to show canso why ho should not be stricken from the roll of practicing attorneys on a charge of malpractice. The proceedings arose out of a suit in the District Court of Polk comity, brought by the said Dillon, in the name of Martha Ann Walker, against her husband, John D. Walker, for a divorce; which suit was prosecuted to a verdict in favor of tile plaintili'. But the presiding judge, being satisfied from the declarations of tile said Dillon, spread upon the record, embodied in a motion made by him for a decree of divorce oil tho verdict, that there was fraud and collusion in tho prosecution of (he suit, and that the said Martha Ann Walker had never directed or authorized the same to be brought and prosecuted, dismissed the suit at the costs of the defendant. The entry of the judgment in the suit for divorce reciled that “William D. Dillon, esq., counsel for plaintiff, moved the court for á decree of final divorce, and informed the court that lie had never seen the plaintiff nor had any correspondence with her upon the subject of this suit; that lie had no authority from her to prosecute the same; that he iiad been spoken to by the defendant in relation thereto, who was anxious to have the divorce obtained; that lie had been spoken to in relation to the suit by a person whom lie liad supposed to be the mutual friend of tho parties; that he was partly employed bjr the defendant.” In his answer to the rule to show cause lie said “that John D. Walker, (lie defendant in the suit referred to for a divorce, applied to him to bring suit against the said Martha Ann Walker for a divorce; that lie was so employed, but having- investigated the case, lie informed the said Walker (hat he could not succeed, and consequently lie abandoned the suit; that afterwards a gentleman, whom he did not linow, requested him to bring the suit for the said Martha Ann against the said John D. for a divorce. Knowing her cause of action to be good, respondent, without any promise of a foe from said John D. iu said last named suit, or without having ever received from him or any other person for him any fee whatever for the same, brought said suit, expecting to ho paid for the same by the plaintiff; that he was well acquainted with many of 1 lie friends of the said Martha Ann, and had brought the action for her in good faith ; that from recent facts in relation to the said divorce the respondent lias reason to suspect that John D. Walker liad some part in sending the messenger to him to bring the suit; that when respondent, on the trial of said cause, was questioned by file court iu the premises, lie answered in reference to the two applications that liad been made to procure t.lio divorce, as above set forth, and not iu reference to the last application alone, on which tho suit was finally brought.’’
    
      The only evidence introduced at the hearing was the record in the case of Walker v. Walker for divorce, to the admission of which tlie respondent excepted. The order was made striking the name of tin; respondent from the roil of attorneys. Tlie respondent appealed. The errors assigned were—
    1st. The admission of the evidence offered by the State.
    2d. Striking respondent from the roll for want of evidence.
    
      Yoakum and McCreary, for appellant.
    Dillon explains one point of. the record — that he had previously undertaken to bring a suit for defendant, but finding the ground untenable had abandoned it.
    It may be said Ills answer is no evidence. Surely he will be permitted to explain what he did say. To take his acknowledgment, write it down in his absence, or without reading it to him, or permitting him to say whether such was his acknowledgment, and then bring up Unit writing in judgment against him, without the proof of any witness to show that such record was true, is not good law, unless lie have leave to explain.
    But it is said “the record cannot be contradicted.” True, when the record speaks to the point it cannot. But when it goes beyond its legitimate functions and talks about other people not parties to the suit, or about matters not in issue, then it is entitled to no credit. For which reason Dillon objected to it as evidence; for another reason also, lie had no notice, no opportunity to cross-examine. lie claimed the benefit of the ancient Roman rule laid down by St. Paul that lie should have the right of meeting his accusers face to face. The authorities are numerous against the admissibility-of tlie record. A judgment to which none of the present parties was a party is not admissible in evidence. (1 La. Cond. R., 62(3; Simpson v. Kennedy, I-Iarp. R., 370; Fitzhugho. Croghau 2 J. J. Marsh. R., 420; Newsom v. Lycan, 3 J. J. Marsh., 440; Fowler v. Collins, 2 Root R., 231; 3 Johns. R., 8; 2 Da. R., 21; 1 Wash. C. C. R., 70; and especially Manny v. Harris, 2 Johns. R., 24; Davis v. Wood, 1 Wheat. R„ 6.)
    The errors assigned go to this point, receiving the record in the divorce case as evidence, and to tlie rejection of the answer of appellant as an explanation of tlie inferences to be thence drawn.
   Lipscomb, J.

The counsel for the appellant object to the record as proof in tlie proceedings against tlie appellant, as he was noilher a party nor privy to that action. And it is certainly true that the judgment in that case could not be evidence against him. But it would not follow that nothing contained in tlie record would be evidence. If lie had answered interrogatories in the suit which was made a part of the record, liis answers could be made evidence against him. He would not bo permitted to contradict what iie had sworn to. Again, tlie record could be referred to for the purpose of proving the fact that lié was tlie attorney who had brought the suit. It does not appear, however, that the appellant swore to or answered on oath the facts disclosed by him anti stated lu the record. It was nothing more than a voluntary declaration. Had the court, for the purpose of ascertaining whether ho had authority to bring the suit, propounded interrogatories and required him to answer them on oath, lie would not have been permitted to gainsay their truth. Iam therefore of tlie opinion that the statement on the record in the suit for a divorce of what liad been acknowledged by tlie respondent should be excluded from the consideration of tiie fact"whether he was guilty or not of the malpractice of which he was charged.

We must take his answer to the rule to show canso as the only evidence against him. This shows pretty clearly that he brought the suit without any authority whatever from, the party whom he made to figure in the character of plaintiff'. He does not allege that the stranger who requested him to bring the suit pretended to have auy'authority whatever from Martha Ann Walker to make that request. lie says that he was acquainted with many of the friends of Mrs. Walker, but he does not say that he consulted with any of them, nor that he was requested by any one of them to bring- the suit. It is strange that he should have neglected these better sources' of information, although not such as he. should have required, and listened to the request of a stranger that he should bring the suit. If it had been his intent to make this much-abused wife fraudulently and surreptitiously a plaintiff, without her knowledge and consent, it was prudent to pretend to have acted on the request of a stranger. It would not have been wise to have given the name of a friend to the party', nor in fact to have named any person. It was more consistent with tiie fraud to deal in general terms, because it would he difficult to prove that he has sworn falsely when ho does not disclose the name of the person who had induced him to bring the. suit. Ilis knowledge of the fact that she had been deeply injured and had good grounds for a divorce furnished no apology for his omission to consult her wishes as to bringing the suit. And his acquaintance with many of her friends afforded him additional facilities in obtaining such information. The story he tells in Ills answer of having been requested by a gentleman lie did not know to bring the suit is altogether too improbable to lie entitled to the least possible credence. lie says he supposed him to he the mutual friend of the parties. But it seems that ho did not even inquire tlie name of this gentleman, who was catering to the accomplishment of the wishes of the prod ¡gate husband. Had lie been requested to bring the suit by a person standing in near relationship to the wife, such as parent or brother, there would have been some excuse for his not making further inquiries; lie might then have presumed that the request was authorized by the person they assumed to represent,. The answer to the rule, so far from exculpating him, leaves on the mind a strong conviction that in bringing the suit lie was acting in fraudulent collusion with the husband to procure the divorce without [®®i] ¡he knowledge and consent of the wife, who was the injured party, amounting to malpractice, and such dereliction of duty as an attorney and counselor of tile courts of the Slate as fully justified the court in revoking his license.

It is hoped that Clio example will not be without a salutary influence, not onlj- in relation to Ihe offender himself, but likewise on others. And should it have the effect to bring him to a just appreciation of what is due to the country, to hirn«elf asan honest man, and to a learned and honorable profession of ■ which lie was a member, there can be no doubt hut the Legislature, on such favorable result being made manifest, will enable the court'to extend to him a new license.

We perceive no error in the judgment of the court below. It is therefore affirmed.

Judgment affirmed.  