
    178 La. 372
    In re CRAVEN.
    No. 30798.
    Supreme Court of Louisiana.
    Dec. 1, 1930.
    On Rehearing Jan. 15, 1931.
    On Plea of Res Judicata April 27, 1931.
    On the Merits Nov. 27, 1933.
    William Alexander Porteous, of New Orleans, curator ad hoc, for Thomas V. Craven.
    Charles F. Fletchinger, Nicholas Callan, and John R. Upton, all of New Orleans, for Supreme Court Committee on Professional Ethics and Grievances.
   ST. PAUL, Justice.

This matter has been before us once already. See 169 La. 555, 125 So. 591.

At that time wq held that under the provisions of article 7, § 10, Const. 1921, all proceedings for the disbarment of attorneys must be had exclusively under rules to be adopted by this court; that the rules then existing provided for no substituted service when the attorney against whom the proceedings were instituted could not be served in person.

Thereafter, to wit, on January 23, 1930 (169 La. p. vii), this court amended its rules so as to provide that, “if it shall appear by affidavit, to the satisfaction of the court, that the accused [attorney] resides out of the state, or has departed from the state, or cannot, after due diligence, be found within the state, or conceals himself to avoid service of citation, the court’shall appoint an, attorney at law to represent the accused, as against whom all proceedings shall be carried on contradictorily, with like effect as if the accused had been served personally with process.”

The proceeding against the accused having bqen dismissed on the grounds above set forth, to wit, want of proper service, the disbarment committee thereupon brought proceedings anew against. the accused; and, having shown by affidavit, to the satisfaction of the court, that the accused had departed from the state, leaving no one to represent him, an attorney at law was appointed to represent him, upon whom process was duly served.

The attorney so appointed excepted to the proceedings on the grounds (1) that the judgment sought against the accused was a personal one and could not be based on substituted process, and (2) that the rule of court providing for substituted process having been adopted subsequent to the date of the alleged misconduct of the accused was ex post facto, and therefore void as to him.

I.

It is a well-settled principle of construction, which is established by a long line of cases, that the constitutional prohibition against the passage of ex post facto laws applies only to penal or criminal matters. Laws which affect only civil rights or which regulate civil remedies are not within the rule which prohibits the passage of ex post facto laws. 12 C. J. 1099 (Const. Law, 803).

But a proceeding for the disbarment of an attorney is not a criminal proceeding, since the purpose thereof is not to punish the attorney but to preserve the courts of justice from the official ministration of persons unfit to practice in them. 6 C. J. 581 (Attorney & Client, 37). And, where the purpose of a statute is to protect the public from unfit persons, it is constitutional, although it disqualifies a person by reason of past acts from continuing in the practice of his profession or from remaining in his business. 12 C. J. 1106 (Const. Law, 815).

Hence the rule providing for substituted service on an absent attorney, even though adopted after the commission of the alleged offense, is not an ex post facto law.

II.

The judgment herein sought against the accused is not a personal judgment, but a judgment in rem. A judgment in perso-nam can result only from some personal obligation which follows the person wherever he may be and may be enforced wherever he may be found. But the, present proceedings do not seek to enforce any personal obligation on the part of the accused; their only purpose is to declare his status as an officer of courts of .this state.

Of that status the courts of this state alone have jurisdiction, and yet it may be (and in this case is) essential to pass upon that status.

Hence, if the courts of this state alone have jurisdiction of the subject-matter, to wit, the status of the accused as a member of the bar of this state, and it becomes necessary to pass on that status, it follows that the courts of this state must have some method of subjecting him to their jurisdiction; and, since that cannot be done by personal service, it follows that substituted service may be resorted to.

It is clear that the privilege or right to practice law is no greater than that of a public officer to continue in the exercise of his function and draw the emoluments of his office. Let us suppose, then, that some public officer should do some act authorizing his removal and then depart from the state. Would it for a moment be contended that, by such removal and the consequent inability to reach him by personal service, he might thereby render abortive any attempt on the part of the state to secure his removal from office? Surely not. 'And, since the state would be powerless to proceed by personal service, it follows, that substituted service ]vould be the only process that could be resorted to.

Decree.

The exception herein filed is therefore overruled.

On the Plea of Res Judicata.

O’NIELL, Chief Justice.

The defendant has filed a plea of res judicata, founded upon the judgment dated the 2d of December, 1929, In re Craven, 169 La. 555, 125 So. 591, dismissing the disbarment proceedings against this defendant, for want of a valid service of summons or citation. The reason for the ruling that the service of citation upon the curator ad hoc, appointed to represent the absent defendant, was not valid, was that there was no.law nor rule of court providing for the appointment of a curator ad hoc to represent a defendant in a disbarment proceeding, where the defendant had departed permanently from the state. Thereafter the court adopted the rule (169 La. p. vii) providing for the appointment of a curator ad hoc, and for service of citation upon him, in such cases. A judgment dismissing a suit for want of a valid service of summons or citation cannot sustain a plea of res judicata in a subsequent suit on the same cause of action. A plea of res judicata cannot prevail unless the issue tendered in the second suit was disposed of by the judgment rendered in the former suit. Rev. Civ. Code, art. 2286; Pink v. Martin, 5 La. Ann. 103; Pepper v. Dunlap, 5 La. Ann. 200; Fisk v. Parker, 14 La. Ann. 491; Buck & Beauchamp v. Blair & Buck, 36 La. Ann. 20; Penouilh, Tutor, v. Abraham, 43 La. Ann. 216, 9 So. 36; Laroussini v. Werlein, 50 La. Ann. 637, 23 So. 467; Laenger v. Laenger, 138 La. 532, 70 So. 501.

The plea of res judicata is overruled.

On the Merits.

OVERTON, Justice.

This case is one calling for the exercise of our original jurisdiction. It presents the question whether Thomas Y. Craven, a member of the New Orleans bar, should he disbarred by the striking of his name from the roll of attorneys, authorized to practice law before the courts of this state. The same cause of action was before us on exceptions on two prior occasions. In re Craven, 169 La. 555, 125 So. 591; In the Matter of Craven, decided December 1, 1930.

The petition for disbarment was filed by the disbarment committee, appointed under rule 20 of this court. It charges that Craven, who was admitted to the bar on June 8, 1916, has demeaned himself, since his admission, in a manner inconsistent with the oath, taken by him as an attorney and counsellor at law, in that he has been guilty of gross .professional misconduct.

This misconduct, it is alleged, consists in Craven’s having obtained from Lloyd Thompson the sum of $50 by forging a certificate of nolle prosequi, on March 16, 1928, on a copy of a bill of information, charging Thompson with assault with intent to rape. To accomplish this nefarious and fraudulent act, it is charged that Craven procured a copy of the bill of information, duly certified by a deputy clerk of the criminal district court for the parish of Orleans, where the charge of assault with intent to rape was lending against Thompson. Having procured this certified •copy, it is charged that Craven indorsed, in typewriting, on the reverse of the copy so obtained, after the deputy clerk had delivered the copy to him, the following, to wit: “Nolle prossed, March 16, 1928, Warren Coleman, Assistant District Attorney,” and that Craven then delivered the certified copy, with the forged nolle prosequi entry to Thompson, and received $50 for having obtained the nolle prosequi.

An answer was filed, and then the court appointed a commissioner to hear the evidence and make a report to it of his findings of fact and conclusions of law. These things the commissioner faithfully did. He found that the charge preferred by the disbarment committee against Craven was well founded, and recommended that Craven be disbarred. Graven, through the curator ad hoe appointed to represent him, excepted to these findings and recommendation, upon the ground that the evidence adduced does not justify the finding that the charge preferred by the committee has been established.

The record leaves no doubt, and it is apparently conceded arguendo, that, as appears from the evidence of two deputy clerks, Craven, on March 16, 1928, applied to the docket deputy for a certified copy of the bill-of information against Thompson, charging him with an assault with intent to rape;' that the clerk replied substantially. that he was occupied then, but would give him a copy in a short while; that Craven replied substantially that, if given the original bill, he would make the copy, and that then the record deputy, by comparing the copy with the original, could test the correctness of the copy; that thereupon the deputy gave the original to Craven; that Craven then went into the clerk’s private office, where apparently he was alone, and where, after he had entered the office, the deputies heard a typewriter in operation; that Craven remained in the private 'office a sufficient length of time to have made the copy, and then returned to the deputy and handed him the original bill and the copy that he' had made.

The copy that Craven delivered to the deputy did not have in it the forged entry of the nolle prosequi. The copy was compared with the original by two deputies and found to be correct. It was then, without the typewritten entry of the nolle prosequi, delivered by one of the deputies to Craven. On the day following its delivery to Craven, Thompson showed the certified copy to Coleman, and said that he wished to know whether everything was in proper shape, as he expected to leave the state the next day, and did not want to be in the attitude of having forfeited his bond.

At the time the assistant district attorney saw the certified copy, the nolle prosequi entry (typewritten, as was the rest of the copy, including the assistant district attorney’s signature to the nolle prosequi entry) appeared in the copy as an indorsement thereon. On or about that day Craven left the state and has not been heard from since.

The only evidence that the disbarment committee has connecting Craven with the forgery or with having fraudulently procured the money thereon from Thompson is Thompson’s own evidence that Craven delivered him the copy of the bill of information with the copy of the entry of the nolle prosequi on it, and received $50 from him, pursuant to an agreement with Thompson to- persuade the district attorney to enter the nolle prosequi, and to furnish proof that he did enter it.

Thompson’s evidence is supported, to some extent, by the circumstance that a deputy clerk delivered the certified copy of the bill, of information to Craven, 'without the in-dorsement of the nolle prosequi on it; by the circumstance that the next seen of the copy was when Thompson showed it to an assistant district attorney, with a copy of the entry of the nolle prosequi thereon; by the circumstance that the language of the entry is in the customary legal form, indicating that some one familiar with records must have made the entry, and by the circumstance, if not explained, that Craven departed from New Orleans about' the time of the alleged forgery, and has not been seen since.

Were we justified in giving weight to Thompson’s evidence, we should feel constrained to affirm the commissioner’s report by disbarring Craven, but, in our view, Thompson’s reputation for truth and veracity is shown to be such that his evidence, standing alone, is not entitled to weight, nor are the corroborating circumstances surrounding it such as to justify us in accepting it as true. It is shown by some eight or ten reputable witnesses that Thompson’s reputation for truth and veracity is bad, some of these witnesses testifying affirmatively that they would not believe him under oath. Such was his reputation at college and in the outside world.

The circumstances tending to support Thompson’s evidence are so far explained by other evidence, or are so weak, as not to justify us in acting upon them. It does not follow that, because Thompson showed the copy with the false entry to the assistant district attorney, he received it from Craven with that entry in it. It is possible that Thompson procured a form somewhere and made the entry himself, and that he showed the forged copy to the assistant district attorney in the hopes of making it to thei interest of the state to nolle prosequi the case against him, in order more successfully to prosecute one against Craven, it appearing that the prosecuting witness in the case against Thompson was willing to have the nolle pros-equi entered to avoid the publicity of the trial. The fact that Craven left New Orleans for parts unknown, on or about the day of the alleged forgery, adds nothing to the weight of Thompson’s evidence or to the weight of the case of the disbarment committee.

Might may be explained always. Here it is sufficiently explained, for it appears that Craven had failed to pay his divorced wife alimony, for which she caused him to be brought before the civil district court for contempt. There he was sentenced to jail for contempt of court. Just before his release from prison, which was before the present cause of action arose, he notified his wife by telephone of his intention to leave for some point, not disclosed. The present cause of action arose quite soon after his release. In these circumstances, the court is unable to 'say whether Craven’s leaving was prompted by d conscious knowledge of guilt, because of the forgery, or, being innocent of the forgery, his leaving was due to family troubles, in that he felt that his home life had been destroyed, and that he had been humiliated and his professional career injuriously affected by his imprisonment for failure to pay alimony.

Some men, and especially those practicing criminal law, by reason of the nature of their occupations, are exposed to the making of false accusations against them by unscrupulous men, and courts should exercise? caution in deciding eases arising out of such accusations. The greater is the care to be exercised when it is made to appear that the determination of the truth of the accusation is largely dependent upon the evidence of witnesses of doubtful veracity.

It is our opinion that the record in the present case does not establish with legal certainty the charge preferred against Craven.

For these reasons, the exception to the report of the commissioner is sustained, and accordingly the demands of the committee on disbarment are rejected and disallowed.  