North Carolina State Bar v. Temple

162 S.E.2d 649 (1968)

2 N.C. App. 91

The NORTH CAROLINA STATE BAR, Complainant, v. Elam Reamuel TEMPLE, Attorney at Law Johnston County, Smithfield, North Carolina, Respondent.

No. 68SC93.

Court of Appeals of North Carolina.

August 14, 1968.

*651 Robert B. Morgan, Lillington, and B. E. James, Raleigh, for complainant appellee.

Elam Reamuel Temple, pro se.

BRITT, Judge.

G.S. § 84-28 deals with discipline and disbarment of attorneys. It authorizes the council of the North Carolina State Bar or any committee of its members appointed for that purpose, or designated by the Supreme Court, to have jurisdiction to hear and determine complaints, charges of malpractice, corrupt or unprofessional conduct, or other allegations made against any member of the North Carolina State Bar. Subsection (3) provides that the processes of the courts may be invoked to carry out the purposes of Chapter 84 but provides that the person charged may demand a trial by jury.

In his appeal to this Court, respondent made numerous assignments of error to the trial proceedings. We will discuss those we deem pertinent to the appeal.

He contends that the trial court committed error in overruling his demurrer and motion to dismiss, his motion to strike, and his plea of the statute of limitations.

It is well established that upon demurrer a pleading will be liberally construed with a view to substantial justice between the parties, giving the pleader the benefit of every reasonable intendment in his favor. A demurrer will not be sustained unless the pleading is wholly insufficient or fatally defective. A demurrer admits, for the purpose of testing the sufficiency of the pleading, the truth of factual averments well stated, and relevant inferences of fact reasonably deducible therefrom. 6 Strong, N.C. Index 2d, Pleadings, § 19, p. 325, citing numerous authorities. The allegations in the complaint in this action were amply sufficient to survive demurrer.

*652 Respondent's demurrer and motion to dismiss were based on the contention that the facts as alleged do not constitute a cause of action. In Bowling v. Burton, 101 N.C. 176, 7 S.E. 701, 2 L.R.A. 285, our Supreme Court held that a defective statement of a cause of action is ground for demurrer but not for a motion to dismiss the action. Respondent was not entitled to have his motion to dismiss granted.

Respondent's motion to strike, denied before the action came on for trial, was made after answer was filed. Granting or denial of the motion then became a matter of discretion for the court, and Judge Mallard properly exercised his discretion in denying the motion. Brown v. Hall, 226 N.C. 732, 40 S.E.2d 412. Furthermore, we find that the motion to strike was without merit, and respondent's assignment of error relating thereto is overruled.

The plea of the statute of limitations is not available to respondent in this action. In 7 Am.Jur.2d, Attorneys, § 62, p. 86; Annotation, 45 A.L.R. 1110, it is said:

"Disciplinary proceedings are not barred by the general statute of limitations. Nor is a disciplinary proceeding barred because it is grounded on acts that also constitute a crime that cannot be prosecuted in a criminal action because of limitations."

Respondent contends that the trial court erred in permitting certain witnesses to testify as to transactions and conversations between the respondent and third parties who were deceased at the time of the trial, contending that the evidence was violative of G.S. § 8-51. We hold that said testimony was not violative of the statute and that the assignments of error relating thereto are without merit.

Assignments of error were also made to the trial court's granting the motion of the U.S. Government to quash the subpoenas of respondent directed to U.S. Secret Service Agents Spicer and Tarlton. Certain rules and regulations are prescribed by the Federal Government for the summoning of Secret Service Agents; the record discloses that respondent failed to comply with the regulations, therefore, we hold that his assignments of error relating thereto are without merit.

Respondent assigns as error the failure of the trial court to grant his motion for judgment as of nonsuit made at the close of complainant's evidence and renewed at the conclusion of all the evidence. We hold that the evidence was more than sufficient to support complainant's complaint and to withstand motions for nonsuit.

On its first cause of action, complainant introduced evidence showing that respondent approached one Jesse Noah Williams and tried to get him to work with respondent in purchasing counterfeit money. Pursuant to his conversation with Williams, the evidence disclosed that respondent met with Secret Service Agent Huff, posing as Williams' brother-in-law, and attempted to consummate a transaction involving counterfeit money. The testimony also showed that in June or July of 1963, respondent contacted one Ralph C. Winstead, a convicted counterfeiter, and attempted to purchase counterfeit money from him.

On its second cause of action, complainant introduced several witnesses who gave detailed testimony in support of each allegation of the second cause of action.

As to the third cause of action, complainant presented testimony of one Moses Tart who testified that he saw respondent alter the note and deed of trust executed by Nancy Williams by changing the amount of the indebtedness stated on the note and deed of trust from $200.00 to $2200.00, and that respondent told Tart at the time that no one would know the difference. The deed of trust was thereafter recorded in the Johnston County Registry.

We have stated only a small portion of the voluminous testimony presented by the complainant. *653 The trial court very properly overruled the motions to nonsuit.

Respondent noted 43 exceptions to the trial court's charge; in fact, he excepted to most of the charge and then by exception No. 70, "[d]efendant objects and excepts to the charge of the Court as a whole." Although respondent's numerous exceptions to the charge probably amount to a broadside exception, we have given careful consideration to the charge and each objection made by the respondent. We do not deem it necessary to discuss the numerous exceptions and assignments of error related to the charge but hold that the charge was without prejudicial error.

We have considered each of respondent's assignments of error, and find them without merit. They are all overruled.

The respondent had a fair trial in his home county where a jury of his peers answered appropriate issues against him. The judgment of the Superior Court predicated thereon is

Affirmed.

CAMPBELL and MORRIS, JJ., concur.