CHAPTER V.

OF THE REMOVAL OR SUSPENSION OF ATTORNEYS, AND THE SUMMARY POWER OF COURT OVER.

§ 1066. An Attorney May be Disbarred for Unprofessional Conduct.

Any member of the bar of this state shall be disbarred by the supreme court, upon proper proceedings for that purpose, whenever it shall be made. to appear to that court that if he were then applying for admission to the bar his application should be denied because of unprofessional conduct. [L. 1901, p. 67, § 1.]

$ 1067. Supreme Court May Remove or Suspend an Attorney, for what Cause. An attorney may be removed or suspended by the supreme court for either of the following causes, arising after his admission to practice:

1. Upon his being convicted of any felony or of a misdemeanor involving moral turpitude, in either of which cases the record of his conviction is conclusive evidence;

2. For a willful disobedience or violation of the order of a court requiring him to do or forbear an act connected with or in the course of his profession;

3. For being guilty of any willful deceit or misconduct in his profession; 4. For a willful violation of any of the provisions of section 1057. [L. 1862; D. Cd. § 1015; H. C. § 1047.]

Upon a charge against an attorney for misconduct, although involving matter for which he might be indicted, the inquiry is directed to the truth of the accusation only so far as it affects his character for trustworthiness or want of integrity. The jurisdiction acts upon the officer, or the facts which show him unfit to hold such office, and is exercised for the protection of the court: State ex rel. v. Winton, 11 Or. 456, 5 Pac. 337, 50 Am. Rep. 486.

The court will not refuse to exercise its jurisdiction to disbar an attorney in a proper case, merely because the offense charged is indictable, and the accused has not been indicted or prosecuted thereon: State ex rel. v. Winton, supra.

On the question whether the court can disbar an attorney for the commission of an indictable offense, committed outside the line of his professional duties, without his first having been indicted and convicted, there is some conflict in the authorities; but the better rule seems to be that where the crime charged affects the general moral character of the attorney, and his general fitness to practice his profession, and is admitted or clearly proven, the court may proceed in a summary manner to disbar him. Where, however, the charge is of a single criminal act, committed in his private capacity, and any doubt of the party's guilt exists, a court should not proceed summarily, but should leave the case to be determined by a jury: Ex parte Cowing, 26 Or. 572, 38 Pac. 1090. If an attorney commit a felony, the nature of which is calculated to injure his reputation for the performance of his duties. he should be removed: Ex parte Thompson. 32 Or. 500, 52 Pac. 570, 40 L. R. A. 195.

The court has a discretion in regard to

the punishment of an attorney, and although the record of the conviction of the attorney for a felony or misdemeanor involving moral turpitude is cónclusive evidence of his guilt, yet the court may, at its option, examine the facts in order to determine the extent and severity of the punishment: Ex parte Mason, 29 Or. 25, 43 Pac. 651, 54 Am. St. Rep. 772.

are

Proceedings against an attorney quasi criminal in their nature, that is, the penalty is fixed, and must follow a finding of guilt: Ex parte Mason, supra.

An attorney who has advised and assisted his client to disobey an order of court requiring her presence before the judge, after the order has been served on the client, and she has generally appeared in answer thereto, is guilty of intent to cause a failure of justice, and should be disbarred: Ex parte Miller, 37 Or. 304, 60 Pac. 999.

In disbarment proceedings based upon a criminal conviction of the attorney, the information must set out the offense of which the attorney was convicted. Where the conviction is of a misdemeanor, the offense must be one involving moral turpitude, and the information must so aver; while in the case of a felony, the mere conviction of the felony is sufficient for disbarment: United States v. Clark, 76 Fed. 560.

Although

courts possess the inherent power to purge the bar, an order of disbarment rendered upon information which is defective will be set aside: United States v. Clark, supra.

The publication of a libel is a misdemeanor involving moral turpiture within the meaning of this section: Ex parte Mason, 29 Or. 18, 43 Pac. 651, 54 Am. St. Rep. 772.

The offense of forging checks, letters, affidavits, and signatures thereto, and using them to injure and defraud a client, is such as to imperatively require the revocation of an attorney's license: Ex parte Kindt, 32 Or. 474, 52 Pac. 187.

An attorney is guilty of "willful misconduct" in his profession in affixing his official jurat as notary public to purported affidavits which were not in fact sworn to before him, and causing them to be filed for use in an action in which he was attorney for one of the parties: Ex parte Finn, 32 Or. 519, 52 Pac. 756, 67 Am. St. Rep. 550.

In such a case it is immaterial that the statements contained in the affidavits were true, nor is his action excused by the fact that the affidavits were not of use because the case was decided on other grounds: Ex parte Finn, supra.

An attorney can not palliate willful misconduct in his profession on the ground that such conduct was customary in the community where he resided: Ex parte Finn, supra.

In a proceeding for disbarment it appeared that the defendant, being employed to resist the probate of a will, drew up a petition for his client's appointment as administrator, and prepared a typewritten form of journal entry for the clerk, naming therein three persons as appraisers; that defendant then had the petition filed, and sent the same, with the entry, to the county judge, who lived at some distance; that, after filing the petition, defendant learned that a petition for the probate of the will was on file, but did not inform the judge, who approved the petition sent him by defendant, signed the journal en

try, and returned the papers to defendant: that the latter then went to the clerk's office with the appraisers named, to have them qualify, but, one of them declining to act, defendant drew his pencil across his name in the entry, and wrote above it the name of another, the change being made in accordance with a custom of the bar, and in the presence of the three appraisers finally chosen, the clerk, and attorneys for proponents. Held, that there was nothing in defendant's conduct warrant disbarment: Ex parte Tongue, 29 Or. 48, 43 Pac. 717.

to

Resignation of an attorney, without the consent of the court, is ineffectual to preclude his disbarment, when proceedings therefor were pending at the time of his resignation: Ex parte Thompson, 32 Or. 499, 52 Pac. 570, 40 L. R. A. 195. See. however, cases of Ex parte Garrigus, 28 Or. 587, and Ex parte Pilkington, 28 Or. 587, in which cases the attorneys were allowed to resign.

The right to meet the witnesses face to face and to cross-examine them is waived by stipulating that the testimony of such persons may be taken by deposition, reserving only questions as to the relevancy, materiality, and competency of the evidence: Ex parte Kindt, 32 Or. 474, 52 Pac. 187.

Proceedings for the disbarment of attorneys for misconduct are not for the purpose of punishment, but are entertained for the protection of the court, the proper administration of justice, the dignity and purity of the profession, the public good. and the protection of clients: Ex parte Finn, 32 Or. 519, 52 Pac. 756, 67 Am. St. Rep. 550.

§ 1068. By Whom Proceeding to be Instituted.

The proceeding to remove an attorney, as provided in the last section, shall be taken by the court, of its own motion, for matters within its knowledge, or that of any of the judges thereof; otherwise, it may be taken upon the information of another. [L. 1862; D. Cd. § 1016; H. C. § 1048.]

$ 1069. Accusation Against Attorney, how Made.

If the proceedings be upon the motion of the court or judges thereof, for matters within its knowledge, the accusation shall be made by an order of the court reciting the facts charged. If upon the information of another, the accusation must be presented to the court in writing, and verified by the oath of the person making it, or of some other person, to the effect that the charges therein contained are true, as he believes. [L. 1862; D. Cd. § 1017; H. C. § 1049.]

$ 1070. Order for Accused to Appear and Answer.

After the accusation has been made or received, the court shall forthwith make an order requiring the accused to appear and answer the accusation at a specified time in the same or a subsequent term, and shall cause a copy of the order and of the accusation to be served upon the accused, within a prescribed time, before the day appointed in the order to appear and answer; but when the proceeding is upon the information of another, the accusation shall be dismissed at once, unless it appear therefrom that the accused should be required to appear and answer the same. [L. 1862; D. Cd. § 1018; H. C. § 1050.]

§ 1071. If Accused do not Appear, Court to Proceed.

The accused must appear at the time appointed in the order and answer the accusation, unless for sufficient cause the court assign another day for that purpose. If he do not appear, the court may proceed and determine the accusation in his absence. [L. 1862; D. Cd. § 1019; H. C. § 1051.]

§ 1072. Accusation May be Demurred to or Controverted.

The accused may demur to the accusation for insufficiency, or controvert it by answer. The demurrer and answer shall be in writing, and the latter shall be verified by the oath of the accused in the same manner as a pleading in an action at law. [L. 1862; D. Cd. § 1020; H. C. § 1052.]

§ 1073. Must Answer Forthwith, when-Judgment for Want of Answer or After Trial.

If a demurrer for insufficiency be not sustained, the accused shall answer forthwith. If he plead guilty or refuse to answer the accusation, the court shall proceed to judgment of removal or suspension. If he controvert the matters charged, the court shall then, or at such time as it may appoint, proceed to try the accusation, and give a judgment of removal, suspension, or acquittal, according to law and the right of the case. [L. 1862; D. Cd. § 1021; H. C. § 1053.]

§ 1074. Accusation Presumed to be True, in what Case - May be Shown Otherwise.

When an accusation is made upon the knowledge of the court or the judges thereof, the facts therein stated are presumed to be true; but if the accused controvert the accusation, he is allowed, on the trial, to overcome such presumption by the introduction of any proper or pertinent evidence therefor. [L. 1862; D. Cd. § 1022; H. C. § 1054.]

§ 1075. Circuit or County Court May Suspend Attorney.

Any circuit or county court may suspend an attorney from practicing therein for any of the causes mentioned in section 1067, for a period not beyond the adjournment of the next term of the supreme court. The mode of proceeding shall be the same as provided in like proceedings in the supreme court. The court giving the judgment of suspension shall cause a certified copy of the judgment, pleadings, and proceedings to be transmitted to the supreme court at the next term thereof, and thereupon such court shall proceed against the party suspended as if the proceeding had originated in that court. [L. 1862; D. Cd. § 1023; H. C. § 1055.]

§ 1076. Attorney May be Required to Deliver Money or Papers.

When an attorney refuses to deliver over money or papers to a person from or for whom he has received them in the course of professional employment, whether in a judicial proceeding or not, he may be required by an order of the court in which a judicial proceeding was prosecuted or defended,

or if none were prosecuted or defended, then by an order of the circuit court or judge thereof for the county where such attorney resides or may be found, to do so within a specified time, or show cause why he should not be punished for a contempt. [L. 1862; D. Cd. § 1024; H. C. § 1056.]

§ 1077. How Court to Proceed if Attorney Claims a Lien.

If, however, the attorney claim a lien upon the money or papers, under the provisions of section 1063, the court shall,—

1. Impose, as a condition of making the order, that the client give security, in form and amount to be directed, to satisfy the lien, when determined in an action or suit; or,

2. Summarily inquire into the facts on which the claim of a lien is founded, and determine the same; or,

3. Direct the trial of the controversy by a jury, or refer it, and upon the verdict or report, determine the same as in other cases. [L. 1862; D. Cd. § 1025; H. C. § 1057.]

CHAPTER VI.

OF PERSONS SPECIALLY AUTHORIZED TO EXECUTE PROCESS IN PARTICULAR CASES.

§ 1078. Elisor, when and by whom Appointed.

Process in any action, suit, or proceeding may be executed by a person specially appointed by the court or judge thereof, who is denominated an elisor, in either of the following cases:

1. When the sheriff and coroner are parties;

2. When either of those officers is a party, and the process is against one of them for a disobedience of an order or process against the other;

3. When the office of sheriff and coroner are vacant, or when it appears to the satisfaction of such court or judge that such process should be executed immediately, and before the sheriff or coroner could be reached. [L. 1862; D. Cd. § 1026; H. C. § 1058.]

Where an objection is made to allowing the sheriff to summon talesmen for a jury on the ground that he is interested and prejudiced, which is denied, the action of the court is discretionary as to appointing elisors for such duty; and where the sher

$ 1079. Powers and Duties of Elisor.

iff has simply expressed an opinion as to the guilt of the defendant the action of the court in refusing to appoint elisors is not an abuse of discretion: State v. Savage, 36 Or. 201, 60 Pac. 610.

An elisor may be required to give security in such manner as the court may direct. When process is delivered to him, he must execute it in the same manner as the sheriff should execute similar process, and in the execution thereof, and in every matter incidental thereto, he is invested with the powers. duties, and responsibilities of the sheriff. [L. 1862; D. Cd. § 1027; H. C. $ 1059.]

A receiver is a person appointed by a court or judicial officer to take charge of property during the pendency of a civil action, suit, or proceeding, or upon a judgment, decree, or order therein, and to manage and dispose of it as the court or officer may direct. [L. 1862; D. Cd. § 1028; H. C. § 1060.]

§ 1081. Receiver, in what Cases Appointed.

A receiver may be appointed in any civil action, suit, or proceeding, other than an action for the recovery of specific personal property,—

1. Provisionally, before judgment or decree, on the application of either party, when his right to the property, which is the subject of the action, suit, or proceeding, and which is in the possession of an adverse party, is probable, and the property or its rents or profits are in danger of being lost or materially injured or impaired;

2. After judgment or decree, to carry the same into effect;

3. To dispose of the property according to the judgment or decree, or to preserve it during the pendency of an appeal, or when an execution has been returned unsatisfied, and the debtor refuses to apply his property in satisfaction of the judgment or decree;

4. In cases provided in this code, or by other statutes, when a corporation has been dissolved, or is insolvent, or in imminent danger of insolvency, or has forfeited its corporate rights;

5. In the cases provided in this code when a debtor has been declared insolvent. [L. 1862; D. Cd. § 1029; H. C. § 1061.]

RECEIVERS.-In a suit for the dissolution of a partnership, it is proper to appoint a receiver, if necessary to protect the property involved, or if the members of the firm can not agree on an adjustment: Fleming v. Carson, 37 Or. 252, 62 Pac. 374.

On appeal in a suit for the dissolution of a partnership, the appointment of a receiver and the proceedings thereunder will not be disturbed on the ground that the findings of the court on final hearing did not show cause for the appointment, if the appointment was justified when made: Fleming v. Carson, supra.

In a suit for an accounting and winding up of a partnership, it was proper for the court to direct a receiver to sell the partnership property in order to finally adjust the firm's affairs: Fleming v. Carson,

supra.

In a suit for the dissolution of partnership, and an accounting, the court should appoint a receiver to convert the property into cash, and should award each partner his share of the net assets after payment of firm liabilitites, less what he may have already received: Durkheimer v. Heilner, 24 Or. 270. 33 Pac. 401.

The court may refuse to appoint a receiver where it is not shown that there is danger that the partnership property will be ultimately lost: Wellman v. Harker, 3 Or. 253.

The title of a receiver on his appointment dates back to the time of granting the order: Pope v. Ames, 20 Or. 199, 25 Pac. 393.

In a decree determining the rights of certain water appropriators, the court may prescribe the manner of measuring the water allowed, and, if necessary to the carrying out of such decree, may appoint a receiver: Tolman v. Casey, 15 Or. 89, 13 Pac. 669.

The appointment of a receiver for an insolvent corporation, on a direct application of a stockholder in a suit brought for the sole purpose of closing up the affairs of the corporation, is not subject to collateral attack, where the court had jurisdiction of the corporation, since the subject-matter was within its jurisdiction: McNary v. Bush, 35 Or. 121, 56 Pac. 646. A receiver who has been appointed pendente lite in a suit to wind up the affairs of an insolvent corporation may be discharged without notice to the creditors generally, and the suit itself may be dismissed on motion of the complaining parties: Rockwell V. Portland Sav. Bank, 31 Or. 431, 50 Pac. 566.

Upon a receiver's appointment, the debtor's choses in action pass to him, subject to the equitable right of set-off then existing against the debtor: Re Assignment of Hamilton, 26 Or. 579, 38 Pac. 1088.

A debtor of a suspended bank, acquiring