text:
    Edgar WILSON and Pauline Wilson, Appellants, v. Ray SHERMAN, Gordon Williamson, and Ed Jennings, as Members of the Hickory County Court, and Gloria Merritt, Respondents.
    No. 10389.
    Missouri Court of Appeals, Springfield District.
    Nov. 6, 1978.

      John M. Belisle, J. D. Baker, Belisle & Baker, Osceola, for appellants.
    Kerry D. Douglas, Douglas & Douglas, Bolivar, James P. Anderton, Hermitage, for respondents.
    Before BILLINGS, C. J., and TITUS and FLANIGAN, JJ.
   FLANIGAN, Judge.

This action involves a road, 20 feet wide, which runs east and west across land owned by plaintiffs Edgar Wilson and Pauline Wilson. At its western terminus the disputed road connects with a north-south public road referred to in the record as the Holly Morton road. The disputed road runs east-wardly from the Holly Morton road across the middle portion of plaintiffs’ 40-acre tract. It then jogs north approximately 30 feet and turns east into land now owned by defendant Gloria Merritt. Other defendants are members of the county court of Hickory County.

In their two-count petition the plaintiffs sought a declaratory judgment defining the rights of the parties with respect to the disputed road and also sought an injunction against defendants’ maintenance or use of it. The trial court, sitting without a jury, found the disputed road to be a “public roadway by virtue of § 228.190,” and decreed that it was “available for use by all members of the public without interference or obstruction.” It also denied injunctive relief. Plaintiffs appeal.

As their first “point relied on” plaintiffs contend that the judgment of the trial court “is wholly unsupported by any competent, credible, substantial evidence and is against the weight of the credible evidence and erroneously declares and applies the law” in three respects: (a) The disputed road “has never been maintained by the public sufficiently to keep it in substantial repair and condition for public use and travel as required by § 228.190”; (b) There was no evidence “that any of the user shown was open, adverse, notorious, continuous, uninterrupted, exclusive and hostile as against the rights of the plaintiffs”; and (c) The trial court’s finding that the disputed road was maintained in substantial repair and condition for public use was “contrary to the proven physical facts.”

Section 228.190 reads:

“All roads in this state that have been established by any order of the county court, and have been used as public highways for a period of ten years or more, shall be deemed legally established public roads; and all roads that have been used as such by the public for ten years continuously, and upon which there shall have been expended public money or labor for such period, shall be deemed legally established roads; and nonuser by the public for ten years continuously of any public road shall be deemed an abandonment and vacation of the same.”

The parties agree that the “sole issue” is whether the evidence justified the trial court in finding, on the authority of the italicized portion of the statute, that the disputed road was “a legally established road.” Plaintiffs argue, in support of sub-point (a) of their first point, that the evidence is insufficient to satisfy that portion of the statute dealing with the expenditure of “public money or labor.” More specifically, plaintiffs argue, the evidence “of public work and money” is “entirely too spasmodic.”

The evidence shows that the disputed road was worked on or graded by various county employees using county grading equipment. The employees, each of whom worked singly, included Ray Sherman, William Kennedy, Larry Woods, and Bobby Kennedy. Sherman graded the road in 1959. William Kennedy “bladed the road” six times during the four-year period from 1965 to 1968. He also testified that his brother Bobby Kennedy graded the road in 1974. Larry Woods graded the road once between 1969 and 1973. Bobby Kennedy graded the road in 1975.

Ray Sherman also testified that the road “has always been an open road.” Sherman said that was true “ever since I can remember” and he had been familiar with the road since 1959 and had farmed nearby. William Kennedy was familiar with the road from 1961 until the time of trial in 1976. “It was being maintained during those years” and “It is a passable road.” There were no obstructions in it until 1975, when plaintiffs’ photographs mentioned in sub-point (c) were taken.

In addition to the foregoing evidence, defendants produced the testimony of Truman Breshears who was presiding judge of the county court from 1959 through 1974. In 1959, at the request of Clyde Paxton, who then owned the land now owned by defendant Merritt, the court authorized the county motor grader operator to grade the road “when he felt it was dry enough.” Bresh-ears said that the road was graded every year and at times more than once a year from 1959 through 1974. Houston Long and Paul Mayberry were the grader operators during 1960 to 1964 and both of them were dead at the time of trial. Josie Pax-ton, Clyde’s widow, testified that “from 1960 to 1962 we had three loads of gravel hauled in there that the county paid for and the grader graded that down.”

In Dayton Township of Cass County v. Brown, 445 S.W.2d 322, 324 (Mo.1969), the court, in discussing that portion of § 228.190 dealing with the expenditure of public money or labor, said: “ ‘To establish a public road under the quoted statutory provision, it is not necessary to prove constant expenditure of public money or labor or, for that matter, expenditure thereof “each and every year for such 10-year period;” but, it is sufficient to show that the expenditure of public money or labor began and “continued from time to time for the period of limitation, as (reasonably) might be considered necessary or expedient by those in authority”, and that such expenditure was sufficient to maintain the road “in substantial repair and condition for public travel.” ’ ”

In Liberty Township of Stoddard County v. Telford, 358 S.W.2d 842 (Mo.1962), the court held that the evidence was sufficient to show that there had been an expenditure of public money or labor on the disputed road for a period of 10 years. The evidence was “that for the 12-year period from 1933 through 1944 there was public labor expended on the road in that the township worked thereon in 1933 and 1934 and in 1942, 1943 and 1944.” The court conceded that there was a period of seven years in the middle of the 12-year period during which there was no expenditure of public work or money. However, in holding that the evidence was sufficient to meet the statutory standard, the court took into account the fact that the road was traveled largely by hunters and fishermen and did not lead to any populous area. Maintaining the road in substantial repair for public travel, said the court, would not require the same amount or type of labor and money as would be required to keep a heavily traveled road in such repair. The court added that members of the public did in fact travel the road throughout the statutory period.

In the case at bar the evidence with regard to the expenditure of public money or labor on the disputed road for the statutory period is stronger than the evidence adduced in Liberty Township, supra. See also State v. Kitchen, 205 Mo.App. 31, 216 S.W. 981 (1919). Sub-point (a) of plaintiffs’ first point has no merit.

In sub-point (b) of their first point plaintiffs assert that the evidence is insufficient to support the judgment in that there was no showing that the user of the disputed road “was open, adverse, notorious, continuous, uninterrupted, exclusive, and hostile as against the rights of the plaintiffs.” Plaintiffs rely principally upon Kelsey v. Shrewsbury, 335 Mo. 79, 71 S.W.2d 730 (1934).

Kelsey, however, is distinguishable. The disputed land in Kelsey was located in the city of Shrewsbury. The city claimed that the disputed land was a street. Section 228.190 was not involved in Kelsey and indeed it could not have been because the statute “applies to public roads, not to streets and alleys.” Rosemann v. Adams, 398 S.W.2d 855, 857[1] (Mo.1966).

Plaintiffs assert that the user must satisfy certain adjectives — open, adverse, notorious, continuous, uninterrupted, exclusive, and hostile. These adjectives are frequently employed to define the user essential to the establishment of a highway by prescription. See 39 Am.Jur.2d Highways, Streets and Bridges, § 26, p. 421. Establishment of a public road under § 228.190 is a method separate and distinct from establishment by prescription. Gover v. Cleveland, 299 S.W.2d 239, 241[1] (Mo.App.1957). If the evidence is sufficient to satisfy the requirements of that portion of § 228.190 which is under consideration here, there is no need to determine whether it meets the requirements of an alternate method for establishment of a public road. Cf. Terhune v. Caton, 487 S.W.2d 19 (Mo.1972). In Terhune the court was dealing with the abandonment, or third, clause of § 228.190. The court held erroneous an instruction which defined “abandoned.” The preparer of the instruction followed “the well established general definition of abandon.” The court, at p. 23, said: “That definition, however, is not applicable here. The submission in this case is governed by [§ 228.190]. The sole finding there required is ‘nonuser by the public for five years continuously.’ Upon such a finding the statute provides as a matter of law that it ‘shall be deemed an abandonment and vacation’ of the road. We accordingly rule that there is no requirement in this case for a finding of intention to abandon.”

In their argument under sub-point (b) of their first point plaintiffs make a contention which is not set forth in the sub-point itself. The contention has not been preserved for appellate consideration. Del Monte Corp. v. Stark & Son Wholesale, Inc., 474 S.W.2d 854, 857[3] (Mo.App.1971). Gratuitous consideration of it discloses that it too has no merit. The contention is that there was no showing of public user of the road. Plaintiffs argue that the type of user shown was insufficient to constitute public use. They make no contention that there was a failure to meet the “10 years continuously” requirement of the second clause of § 228.190.

“[T]he character of a road, as to whether it is public or private, is determined by the extent of the right to use it, and not by the extent to which that right is exercised [ Wallach v. Stetina, Mo.App., 28 S.W.2d 389, 390(2); Phelps v. Dockins, Mo.App., 234 S.W. 1022, 1023(4)] or by the quantity of travel over it. Gilleland v. Rutt [63 S.W.2d 199 (Mo.App.)] supra, 63 S.W.2d at 202(8).” Connell v. Baker, 458 S.W.2d 573, 577[4] (Mo.App.1970).

In Dayton Township of Cass County v. Brown, 445 S.W.2d 322 (Mo.1969) the court said, at p. 325: “ ‘Whether a road is public depends in a measure on the particular facts. Thus it must, of physical necessity, be so situated and connected as to be accessible to the public, but it does not depend on its length, or on the place to which it leads, or on the number of people who use it. It is enough if its use is free and common to all citizens, and that the public has actual access to it, whether by a mere neighborhood or settlement road, or by some established public highway.’ ”

Each side produced several witnesses, most of whom were elderly and had been familiar with the disputed road for many years. In general the witnesses for the defendants described a more extensive use of the road than did plaintiffs’ witnesses. However, plaintiffs’ evidence disclosed the following: Occasionally plaintiff Edgar Wilson would see “someone go down the road”; prior owners of the Merritt farm used it; Perry Reno had hunted down the road and had gone down the road for the purpose of picking fruit; Reno’s brother had used the road; Tommy Moore had helped Clyde Paxton haul wood down the road and had gone down the road for the purpose of getting fruit; L. G. Hacker had walked down the road, had driven it a few times in a Jeep and had been there to hunt quail; Trucey Lurten had helped plaintiff Wilson haul rock down the road using a team and wagon; Ed Jennings, a member of the county court, had inspected the road; plaintiff Pauline Wilson had seen cars go down the road.

Defendants’ evidence included the following: Truman Breshears had used the road to hunt mushrooms, had inspected it as a member of the county court, and had used it to visit Paxton; Ray Sherman had farmed the nearby “Holly Morton place” for three years; Sherman testified, “I was right there and saw traffic going up and down that road, I saw the road all summer, practically every day — it has always been an open road, the road was used”; John Martin had used the road once or twice a week “ever since the 1950’s”; Josie Paxton said that the road “was used a good bit, almost any time a vehicle wanted to come in there”; members of the Prairie Union Homemakers Club used the road every year; Ray Stephens had hauled hay on the road using a pull-type six-foot combine; big trucks hauling hay used the road.

It is a reasonable inference from the evidence that the most frequent users of the road were the owners of the land now owned by defendant Merritt and people having occasion to visit that farm. Nevertheless the evidence supports the finding that members of the public used the road for purposes other than visiting the Merritt farm. Although no two road cases are alike with respect to the nature and extent of the user, see Dayton Township of Cass County v. Brown, 445 S.W.2d 322, 325 (Mo.1969), Drydale v. Kiser, 413 S.W.2d 506 (Mo.1967), and Gilleland v. Rutt, 63 S.W.2d 199, 202[7, 8] (Mo.App.1933) where, under somewhat similar evidence, the user was held sufficient to constitute the road a public one.

In Gilleland, at p. 202 the court said:

“The fact that [the disputed road] may be a great benefit to the defendant’s farm and used by him and others in getting in and out therefrom does not deprive it of its public character so long as it is open for use by the public generally, and is being used by such of the public as desire or have occasion to use it; nor is its public character affected by the fact, if it be a fact, that only a few may use it. . It makes no difference in this case that those who use the road may use it for the purpose of visiting defendant’s farm. So long as there are those of the public who desire to use it for that purpose, they have the right so to use it. The part of the roadway in controversy here is not within or upon defendant’s farm or under his inclosure, nor has he any control over it, except as one of the public, to use it in common with others as occasion requires.”

Sub-point (b) of plaintiffs’ first point has no merit.

In support of sub-point (c) of their first point plaintiffs rely upon 10 photographs which, they argue, disprove the trial court’s finding that the disputed road was maintained “in substantial repair and condition for public use and public travel.” The trial court made no such express finding. It did find that the road had been used as such by the public for 10 years continuously and further found that for that period public money or labor was expended on it. In their argument under sub-point (c) plaintiffs rely upon the photographs to demonstrate the impropriety of the latter findings. At no time did plaintiffs claim that there had been an abandonment of the road within the terms of the third clause of § 228.190.

Plaintiffs’ photographs were taken in “late June or early July, 1975” and show, according to plaintiffs, “substantial weeds, grass and brush grown up in the traveled portion of the road.” This court has examined plaintiffs’ photographs. They also show low-hanging trees extending over the road. Defendants introduced into evidence photographs showing that in 1976 the road was substantially free of the weeds, grass and brush appearing in plaintiffs’ photographs. There was also evidence that in March 1975 a county employee attempted to grade the road and was interrupted in his efforts by plaintiff Wilson who, on that occasion, told the operator to leave and also made the statement that he was going “to whip” a member of the county court. It is a reasonable inference from the evidence that some of the growth shown in plaintiffs’ photographs would not have been there had plaintiff not interfered with the grading. See the testimony of William Kennedy mentioned earlier.

In Warm v. Gruner, 251 S.W.2d 57 (Mo. 1952) the supreme court affirmed the finding of the trial court that a disputed road was a public road although there was evidence that tree branches extended “to the middle of and down close to the road itself” and persons using the road “had to cut those branches to get by with their automobile.”

Plaintiffs’ photographs, showing the condition of the disputed road at one time only, do not sap the other evidence of its vitality or undermine its sufficiency to sustain the finding of the trial court that the requirements of the second clause of § 228.-190 had been met. Sub-point (c) of plaintiffs’ first point has no merit.

Plaintiffs’ second point is that the trial court erred in refusing to admit into evidence plaintiffs’ Exhibit 14, a map of Hickory County, Missouri, prepared by the Missouri State Highway Department. According to plaintiffs, the map shows the disputed road to be “a private road.”

Plaintiffs do not contend that Exhibit 14, even if it had been admitted into evidence, would have been conclusive on the issue of the character of the disputed road as a private or public one. Plaintiffs do argue that the exhibit was admissible to impeach defendant Ray Sherman. The record is unclear as to what portions of Sherman’s testimony plaintiffs intended to impeach by the use of the excluded exhibit. The argument portion of plaintiffs’ brief contains no specific page reference to the attacked portions, whatever they are, of Sherman’s testimony. See Rule 84.04(h). Perhaps one construction of plaintiffs’ argument is that Exhibit 14, which was prepared in 1972, conflicts with Sherman’s testimony to the effect that the county court, in 1959, when authorizing maintenance of the disputed road, relied upon a map “similar” to the exhibit.

If Exhibit 14 was admissible, on appellate review this court must consider it. Rule 73.01 para. 3. Assuming, arguendo, that Exhibit 14 may have been admissible, it was offered for the limited purpose of impeaching Sherman and plaintiffs have failed to demonstrate its impeachment quality. Even if Exhibit 14 had been received, the decree of the trial court was supported by substantial evidence, was not against the weight of the evidence, and neither declared nor applied the law erroneously. That being so, the judgment must be affirmed. Murphy v. Carron, 536 S.W.2d 30, 32[1] (Mo. banc 1976).

Plaintiffs’ second point has no merit.

The judgment is affirmed.

All concur.

      . Unless otherwise indicated, all references to rules are to Missouri Rules of Court, V.A.M.R., and all references to statutes are to RSMo 1969, V.A.M.S.

      . In a case dealing with a prior version of § 228.190 it was held that establishing a road as a public road by prescription requires proof of adverse user for 10 years prior to 1887. State v. Haworth, 124 S.W.2d 653, 654[1] (Mo.App.1939). See also Gover v. Cleveland, 299 S.W.2d 239, 241 [2] (Mo.App. 1957) and cases there cited.

      . One asserting that a public road has been abandoned has the burden of proving such abandonment by clear and cogent proof. State v. Lewis, 294 S.W.2d 954, 958 (Mo.App.1956).


source: Caselaw Access Project

author: CLEMENS, Judge.

license: Public Domain

text:
    Billie BUSSMANN, Appellant, v. Harry T. BUSSMANN, Jr., Respondent.
    No. 39463.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Nov. 7, 1978.
    Clayton & Karfeld, Charles S. Clayton, St. Louis, for appellant.
    Donald Weyerich, LaTourette & Weye-rich, Clayton, for respondent.
   CLEMENS, Judge.

Plaintiff-wife Billie Bussmann (hereafter “plaintiff”) appeals from the trial court’s judgment denying her petition for separate maintenance, to which defendant had answered by a general denial.

Plaintiff does not contend her evidence was sufficient to show defendant-husband’s abandonment and non-support. Clearly it did not. Plaintiff contends, however, that such proof was unnecessary because “these facts were admitted in the interlocutory judgment.” This contention must fail for the basic reason that the record fails to show there ever was an interlocutory judgment. We examine the record.

December 10, 1976. Defendant not having answered plaintiff’s interrogatories, the court ordered defendant to do so within twenty days. He belatedly complied.
January 26, 1977. Plaintiff moved for a default judgment on the ground defendant’s answers to plaintiff’s interrogatories were incomplete.
March 4, 1977. Court granted defendant thirty days to answer interrogatories completely “or petitioner’s motion for default shall be granted.”
April 5,1977. Upon plaintiff’s oral motion the court ordered “Default and inquiry granted . . . and cause set for trial on April 13, 1977.”
April 13, 1977. Parties appeared and without objection announced ready for hearing on plaintiff’s petition. Evidence adduced. Trial concluded; court found plaintiff had not shown abandonment or failure to support. Petition denied.

As said, plaintiff contends the trial court’s April 5 order of “default and inquiry granted” was an interlocutory judgment which precluded an adverse judgment on the merits. She relies on Sumpter v. J. E. Sieben Construction Company, 492 S.W.2d 150[8-10] (Mo.App.1973). That case is not in point because there, unlike the present case, defendant had failed to answer and a final default judgment was entered upon plaintiff’s evidence of damages.

We deny plaintiff’s contention that the “default and inquiry” order is tantamount to a default judgment which precluded evidence on the merits of her case. This is squarely refuted by the parallel case of J. G. Jackson & Associates v. Mosley, 308 S.W.2d 774[3] (Mo.App.1958). There, as here, after defendant had filed an answer, the court entered an order: “Default and inquiry granted. Cause passed to January 21, 1956.” Four days later the trial court heard testimony on liability and damages and rendered judgment. We ruled the “default and inquiry” order did not constitute an interlocutory judgment adjudging the petition confessed. Instead, we ruled upon the ensuing evidentiary hearing: “The trial court gave full effect to the issue raised by the answer. It took nothing as confessed and proceeded to hear evidence in the cause.”

So it is here. Plaintiff never had an interlocutory judgment that precluded the trial court’s determination of the cause upon the evidence adduced.

Judgment affirmed.

REINHARD, P. J., and GUNN, J., concur.

      . This order has not been included in the transcript; we consider it only because it does appear by an appendix to defendant’s brief.


author: REINHARD, Presiding Judge.

text:
    Leroy TAYLOR, Appellant, v. STATE of Missouri, Respondent.
    No. 39916.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Nov. 7, 1978.
    Fredman, Watkins & Fredman, Mark S. Fredman, St. Louis, for appellant.

      John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., Michael G. Ravetta, Asst. Circuit Atty., St. Louis, for respondent.
   REINHARD, Presiding Judge.

Appellant, Leroy Taylor, while serving a twenty-two year sentence for second degree murder, armed robbery with a deadly weapon, and assault with malice aforethought, filed in the Circuit Court of the City of St. Louis a post-conviction motion under Rule 27.26. The Circuit Court, after conducting an evidentiary hearing on the motion, denied appellant relief. We affirm.

On August 11, 1975, appellant appeared with his attorney and entered a plea of guilty. At that time, the court questioned the appellant about the voluntariness of his plea and his understanding of the nature of the charges. Before admitting each essential element of the charged offenses, the appellant listened to the State outline the evidence which it intended to produce. The appellant specifically stated to the court that he had consulted with his attorney on “several” occasions. He stated that his lawyer had represented him satisfactorily and that he desired no further legal counsel.

On May 26, 1976, appellant filed a 27.26 motion alleging the following grounds for post-conviction relief: 1) ineffective assistance of counsel; 2) denial of a fair trial because he was not offered a private psychiatrist; and 3) the unconstitutionality of § 552.020, RSMo. (1978 Supp.).

At the 27.26 evidentiary hearing, appellant stated that his attorney had visited him only twice before he entered his guilty plea. Further, he contended that his lawyer had failed to contact a supposed alibi witness, Joyce Carter. Appellant’s testimony is unclear as to when he discovered that his attorney had not contacted Joyce Carter. At one point in the hearing he claimed he knew before he pleaded because he had talked to Joyce Carter about not being contacted, and at another point he stated he first learned after he pleaded.

Appellant’s attorney at the plea hearing, testified on behalf of the State at the 27.26 hearing. He stated he had visited the mov-ant not just “twice” but a “number of times” before the trial date. Further, he testified that he had in fact contacted appellant’s supposed alibi witness. The contact revealed that Joyce Carter could recall very few relevant facts and that she had once lived with the appellant-movant. The attorney concluded, in light of Joyce Carter’s indefiniteness and potential bias, that she would have been “more detrimental than beneficial” to appellant’s case and consequently should not be called to testify. Further, he claimed at the time appellant entered his guilty plea, he stood ready to try the case.

Having observed the demeanor and conduct of the appellant both at the plea hearing and the 27.26 evidentiary hearing and having read the transcript of the plea, the trial court found the plea to have been made voluntarily and with an understanding of the nature of the charges and denied appellant’s 27.26 motion.

This court must affirm the findings, conclusions, and judgment of the trial court unless they are “clearly erroneous.” Rule 27.26(j); Maggard v. State, 471 S.W.2d 161, 166 (Mo.1971); Bonner v. State, 535 S.W.2d 289, 297 (Mo.App.1976).

On appeal the appellant raises only one of his three grounds for post-conviction relief: the issue of ineffective assistance of counsel. Nowhere in his brief does appellant allege that such ineffectiveness affected the voluntariness of his plea. In Missouri, the cases clearly establish that after a defendant has pleaded guilty, the issue of adequate assistance of trial counsel goes only to whether such ineffectiveness affected the voluntariness of the plea. Matthews v. State, 501 S.W.2d 44, 47 (Mo.1973); Bolin v. State, 552 S.W.2d 58, 59-60 (Mo.App.1977); Bennett v. State, 549 S.W.2d 585, 587 (Mo.App.1977); Haliburton v. State, 546 S.W.2d 771, 773 (Mo.App.1977). As a matter of law, because appellant failed to allege facts showing that he pleaded involuntarily due to ineffective assistance of counsel, he has failed to show that the court should award him post-conviction relief. Bolin v. State, supra at 60.

Even on the merits, appellant would not be entitled to post-conviction relief. Appellant’s own testimony at the time of his plea regarding ineffective assistance of counsel contradicts his testimony at the 27.-26 hearing. The testimony of his attorney also refutes the validity of appellant’s 27.26 testimony. Consequently, the trial court rejected “the denied, refuted and contradicted evidence” presented by the appellant at the 27.26 hearing. This decision is within the province of the trial court which need not believe the appellant’s testimony at a 27.26 hearing. Bennett v. State, supra at 586; Bonner v. State, supra at 298. As required we give due regard to the trial judge’s opportunity to hear witnesses and defer to his determination of credibility unless it clearly appears that he has abused his discretion. Walster v. State, 438 S.W.2d 1, 2-3 (Mo.1969); Bennett v. State, supra at 586. The trial court specifically found the testimony of the appellant not credible based on the demeanor and conduct of the appellant both at the time he pleaded and at the 27.26 hearing.

The judgment of the trial court is affirmed.

CLEMENS and GUNN, JJ., concur.


author: BROCK, Justice.

text:
    In re INVESTIGATION OF POLK COUNTY VOTING FRAUD AND ELECTION LAW VIOLATION.
    Supreme Court of Tennessee.
    Nov. 20, 1978.
    James Logan, Jr., Cleveland, for petitioner; Finnell, Thompson, Logan & Rogers, Cleveland, of counsel.
    Jack E. Seaman, Asst. Atty. Gen., Nashville, Richard A. Fisher, Dist. Atty. Gen., Cleveland, for respondent; Brooks MeLe-more, Jr., Atty. Gen., Nashville, of counsel.
   OPINION

BROCK, Justice.

We granted the writs of common law certiorari and supersedeas to review an order of the circuit judge for Polk County, made pursuant to a motion of the District Attorney General, that the petitioner, Charles A. Maynor, a notary public of Polk County, Tennessee,

“. . . appear at his office in the Polk County courthouse, Benton, Tennessee, on the 2nd day of June, 1978, at 10:00 a. m. and in the presence and under the supervision of agent Joe Helton of the Tennessee Bureau of Criminal Identification give handwriting exemplars as follows:
(1) Charles A. Maynor (twenty each in script),
(2) Charles Maynor (twenty each in script),
(3) C. Maynor (twenty each in script),
(4) N. P. (twenty each in script and print),
(5) Polk (twenty each in script and print),
(6) Tenn (twenty each in script and print),
(7) March (twenty each in script and print),
(8) 78 (twenty each),
(9) Numerals 1, 2, 3, 4, 5, 6, 7, 8, 9, 10 (twenty each).
“Willful failure to so appear and so provide handwriting exemplars as above ordered shall constitute violation of this order and contempt of court.”

The motion of the District Attorney General pursuant to which said order issued was as follows:

“Comes now the State of Tennessee, by and through the District Attorney General for the 24th Judicial Circuit, and moves the court for an order directing Charles A. Maynor, a public official and commissioned notary public of the State of Tennessee, whose alleged signature appears on certain official election materials to furnish the State of Tennessee with sufficient handwriting examples made by the said Charles A. Maynor of numbers and the English language, including but not limited to dictated writings and printing, in such quantities as are sufficient for expert analysis by the Federal Bureau of Investigation laboratory.”

The procedure employed and the result reached in the Circuit Court for Polk County is challenged by the petitioner as being unauthorized by any statutory or decisional law of this State. We agree.

When the order in question was made, no legal proceeding of any kind was pending against petitioner Maynor. It appears from the record that the District Attorney General, assisted by certain agents of the Tennessee Bureau of Identification, was engaged in an investigation of irregularities alleged to have occurred in the constitutional referendum conducted on March 7, 1978, and that the District Attorney General desired to obtain handwriting exemplars of the petitioner in order to compare them with handwriting, which appeared to be that of the petitioner, upon certain documents in connection with absentee ballots used in said election.

Long ago, in Warner v. State, 81 Tenn. 52 (1884), this Court condemned the practice of District Attorneys General in causing subpoenas to be issued in the absence of specific requests of the grand jury, even though the witness was directed to appear before the grand jury. What the Court said in that case is relevant here:

“[B]y what authority does an attorney-general assume to perform the functions and exclusive duties of the grand jury? The mere fact that he is an officer of the court and may visit the grand jury, prepare and present indictments to them, and prepare presentments when directed by the grand jury, does not imply an authority to assume any of the duties assigned by law to a grand juror. If he may assume the office of grand juror for one purpose, why may he not do so for every purpose? If because he suspects a violation of law, he may of himself and of his own motion'order a subpoena for witnesses to go before the grand jury to give evidence touching the same, why may not the sheriff or constable who waits upon the grand jury do so? Why may not the judge himself or any attorney for the court assume and practice the power? “It requires a judge, attorney-general, attorneys, clerks, sheriffs, etc., to constitute a court, and each is an officer of the court, so if we construe the law directed to grand juries to include one officer of the court, we must for the same reason construe it to embrace all officers of that court.” Warner v. State, 81 Tenn. at 54-55.

The authority of the district attorney general and of the circuit court, in the respects herein material, have not been increased since the decision in the Warner case. The only authority for the district attorney general to cause the issuance of subpoenas is found in T.C.A., § 40-1619, which provides:

“The district attorneys may call upon the clerks of their various courts for process, between the terms of their respective courts, to secure the attendance of witnesses before the grand juries on the first day of the succeeding term, whenever, in their opinion, it is necessary to secure the ends of justice and protect the interests of the state.”

This provision merely authorizes the district attorney general to cause witnesses to be subpoenaed for appearance before the grand jury, but not before him, if it is deemed necessary and if the grand jury is not then in session. If the grand jury is in session, that body, not the district attorney general, has the sole authority to cause the issuance of subpoenas for witnesses in criminal matters. T.C.A., § 40-1617, 40-1618.

In Graves v. State, Tenn.Cr.App., 489 S.W.2d 74 (1972), the Court of Criminal Appeals cited and relied upon Warner v. State, supra, as authority for its conclusion that “general information subpoenas” issued by the District Attorney General for Shelby County requiring witnesses to appear at his office “to confer with an assistant district attorney general” were invalid. Said the court:

“No authority exists for the District Attorney Generals of this State to cause the issuance of subpoenas to secure the attendance of witnesses before him or any representative of his office. The power to send for witnesses for the purpose of investigating suspected crime is by statute conferred upon the grand jury alone.” Graves v. State, 489 S.W.2d at 79-80.

This Court denied certiorari in the Graves case.

We note that, for reasons best known to him, the District Attorney General has failed to utilize the provisions of T.C.A., § 38-502, which purport to grant authority to agents of the Tennessee Bureau of Identification as follows:

“When detailed by the commissioner to aid the district attorney general as aforesaid, such field investigators shall have full power to issue subpoenas for witnesses, serve the same, to administer oath to such witnesses as they may summon, to take written statements from them and when so detailed shall have the same powers with reference to the execution of criminal process, making arrests, and the like, as does the sheriff of the county in which such investigators are at work.” This statutory provision was not merely

overlooked by the District Attorney General in this case. In the course of his argument seeking the order here under review, Assistant District Attorney General Deacon stated:

“We are following the most reasonable procedure that I can think of. It is a lot more reasonable than in the compulsion which could possibly be provided by a T.B.I. subpoena or through a grand jury subpoena.”

We conclude that the procedure employed by the District Attorney General and the Circuit Court in this case was not authorized by any statutory provision or decision of this Court and, hence, that the order of the Circuit Court purporting to require the petitioner to give the handwriting exemplars as above mentioned is of no force and effect.

The subject order of the Circuit Court for Polk County is hereby reversed and the motion of the District Attorney General seeking handwriting exemplars from the petitioner is denied. • Costs of this cause are adjudged against the State of Tennessee.

HENRY, C. J., and FONES, COOPER and HARBISON, JJ., concur.


author: FONES, Justice.

text:
    Charles G. WRIGHT, Jr. v. Robert ROBERTS and the Disciplinary Board of the Supreme Court of Tennessee.
    Supreme Court of Tennessee.
    Nov. 20, 1978.

      Charles G. Wright, Jr., Chattanooga, for appellant.
    Lance B. Bracy, Nashville, for appellees.
   OPINION

FONES, Justice.

Appellant, Charles G. Wright, Jr., a member of the Chattanooga bar, was charged with unprofessional conduct committed while representing the wife in a divorce action in the Circuit Court of Hamilton County, Tennessee, and during his representation of a party seeking appointment as conservator of her father in the Chancery Court.

In the divorce action he was charged, (1) with advising his client to violate a restraining order; (2) surreptitiously taking a default judgment and final decree of divorce without notice to opposing counsel who had appeared in the case and without notice to the judge who awarded the decree that the husband had a divorce action pending in another division of the court that had been filed prior to the wife’s action; and (3) filing a contempt citation against another lawyer and failing to present any evidence in support thereof.

In the conservatorship proceeding, appellant was charged with (1) failing to appear for scheduled motions; (2) failing to respond to the orders of the chancellor; (3) failing to divulge to one chancellor prior proceedings before another chancellor; and (4) failing to divulge the dismissed status of the conservatorship.

A hearing committee consisting of Frank N. Bratton, J. D. Culvahouse, and Robert Kirk Walker, found that appellant was guilty of unprofessional conduct in violation of T.C.A. § 29-308(5), disciplinary rule 1— 102(4), (5), and (6) and disciplinary rule 7— 102(A)(7) and (8) and suspended him from the practice of law for a period of six months. Appellant petitioned to chancery court for a review of the judgment of the hearing committee and Chancellor Len Broughton, sitting by special designation, affirmed their action in suspending appellant for six months.

Appellant has brought a direct appeal to this Court from the action of the chancellor and the case has been orally argued.

I.

Appellant represented the wife, Kathline Ann Wallace and Robert H. Crawford, an attorney at the Chattanooga Bar, represented the husband, Ronald Neal Wallace. The husband’s complaint for divorce was filed on January 27, 1976, at 11:44 a. m., and assigned docket number N-35381. Judge Walker, Judge of Division IV of the Circuit Court of Hamilton County had signed a restraining order at 11:35 a. m. restraining the wife from removing the minor child of the parties from the State of Tennessee.

At 1:26 p. m., on January 27, 1976, appellant filed, on behalf of the wife, a complaint for divorce which was assigned docket number N-35387. Appellant obtained a restraining order from Judge Summitt, Judge of Division I at 1:28 p. m. on that date restraining the defendant from coming about the plaintiff or her residence or threatening her or the child or interfering with the custody of the child in plaintiff, wife.

Appellant testified that he received a call later in the afternoon of January 27, advising him of the filing of the husband’s suit and asking if he would accept service of process. He responded that he would do so if Mr. Crawford would accept service of process in the suit he had filed on behalf of the wife. Later that same day appellant accepted service of process for his client and Mr. Crawford accepted service of process for his client.

During the thirty day period immediately following the filing of these suits, appellant and Mr. Crawford had a number of communications involving the restraining orders, the appropriate amount of temporary child support and the father’s visitation privileges with the minor child.

They worked out an agreement for $20 per week temporary child support which was paid to appellant for his client. Husband learned that the wife had taken their ten month old child from the state. Mr. Crawford called appellant and confronted him with the fact that the restraining order had been violated. Appellant insisted and continues to insist that he did not read the restraining order when the bill was served upon him or at anytime prior to Mr. Crawford’s call. Appellant advised Mr. Crawford that the wife was in Atlanta but that satisfactory visitation privileges would be worked out.

On Thursday, February 26, 1976, the thirtieth day following the filing of the suits, appellant and Mr. Crawford worked out an arrangement for the wife to bring the child to Chattanooga for visitation with the father. On that same day, appellant filed an answer in the husband’s lawsuit and took a default judgment against the husband in the wife’s lawsuit, without notice to opposing counsel. Appellant testified that he called his client in Atlanta at about 2:00 p. m. on Thursday, February 26, 1976, and advised her that if no answer was filed by the time the courthouse closed at 4:00 p. m. he would take a default judgment and that unless she heard from him later she was to be present in Chattanooga on Friday for the purpose of getting the divorce. Appellant testified that, in fact, wife’s aunt drove her to Chattanooga on the 26th and when he saw her on the morning of the 27th he learned that she had not brought the child, and would not bring the child to Chattanooga for the visitation which had been arranged. Appellant called Mr. Crawford’s office on Friday, February 27, 1976, and left word that the child would not be available in accordance with the agreement. On that same day appellant took his client and her witnesses to the courthouse where they learned that Judge Summitt, to whose division the wife’s case had been assigned, was out of town. Arrangements were made for Judge Payne to hear the wife’s case by interchange and a final decree of divorce was entered in Judge Payne’s court. Judge Payne did not know that the husband had filed a divorce complaint against the wife and did not know that the husband was represented by Mr. Crawford. Appellant did not disclose those facts to Judge Payne.

Appellant had mailed a copy of his answer in husband’s suit to Mr. Crawford which Mr. Crawford received on Saturday. Mr. Crawford prepared an answer for filing in the wife’s suit on Friday, February 17, mailed a copy to appellant, but did not file it in the clerk’s office that day.

On March 8, 1976, Judge Payne, the presiding Judge of Part II of the Circuit Court of Hamilton County heard the husband’s motion and set aside the default judgment and the final decree of divorce and transferred the case to Division III for consolidation with the husband’s case which had been assigned the lowest docket number. Later the same day Judge Milburn, Presiding Judge of Division III, held a hearing on Mr. Crawford’s petition to hold appellant in contempt for his complicity in violating the restraining order against removing the child from the state and taking a default judgment and final decree of divorce without notice to Mr. Crawford and without advising Judge Payne that the husband had a lawsuit pending in Division III of the Circuit Court seeking a divorce from his wife on the grounds of cruel and inhuman treatment and permanent custody of the minor child, and that the husband was represented in the wife’s suit by counsel.

Judge Milburn found appellant in contempt of court and imposed a fine of $50 and a ten day jail sentence, but suspended the jail sentence.

Appellant insisted that he was unaware of the local rule requiring consolidation of the two cases; that he entertained the good faith opinion that he was entitled to treat them as separate cases and in that posture Mr. Crawford had made no appearance in the wife’s case, within the contemplation of T.R.C.P. 55.01 and therefore he was entitled to take the default judgment, without five days notice, and proceed to final decree.

It should be entirely unnecessary to cite any authority in support of the fact that Mr. Crawford had made an “appearance” in the wife’s lawsuit. Appellant refers to his extensive research on the question of what constitutes appearance, but has apparently overlooked a basic Tennessee authoritative source, Gibson’s Suit’s in Chancery. Chapter LXVII of the fifth edition of that work is entitled “Solicitors: Their Rights, Duties and Liabilities” and § 1243 reads in part as follows:

§ 1243. His Retainer and Appearance in a Cause. — Retainer is the act of a client by which he engages an attorney or Solicitor to manage a suit for him in Court. This act may be written or verbal, direct or indirect, express or implied. When a Solicitor appears in a cause, his authority so to do is presumed. The mere fact of his appearance is always deemed enough evidence of his authority, and neither the opposite party nor the Court expects or requires any other, in all ordinary cases. This appearance may be (1) by signing, or having his name signed to, some pleading or other paper filed in the cause; or (2) by entering his name on the rule or trial docket as a Solicitor in the cause; or (3) by appearing before the Chancellor or Master in vacation, or before the Court, as such Solicitor.

Within both the letter and the spirit of that section, Mr. Crawford had “appeared” in the wife’s suit. The process had his name signed to it as having accepted service on behalf of the defendant, husband, in accord with the condition prescribed by appellant before accepting service for his client, the day both suits were filed.

In our view it is immaterial whether or not appellant had actual knowledge of the local rule that required the consolidation of the two Wallace divorce cases in the Division to which the husband’s suit was assigned. That two divorce actions pending in the same circuit court of any judicial district in this state must be consolidated and must be treated by counsel as having been consolidated from their inception, is too elementary to belabor. Again, for the inexperienced practitioner as appellant describes himself, and in the absence of any local rule, 2 Gibson, Suits in Chancery § 800(8) (5th ed. 1956) provides the guidance necessary to determine whether or not such suits should be consolidated.

Factually appellant insists that (1) he never made any representation to Mr. Crawford that no default would be taken; (2) no permanent relief was negotiated between appellant and Mr. Crawford; (3) Mr. Crawford and appellant communicated for a very short time during the negotiations; and (4) appellant had no fraudulent intent in taking a default judgment. Appellant’s brief quotes his own explanations extracted from various portions of the record in support of these contentions. Three excerpts therefrom follow:

Might I say for the record, and I am being somewhat repetitious, and if I was in Your Honor's position, I would do the same thing as far as getting the merits of the case, but at no time during this whole thing did I ever plan to be deceitful, did I ever manifest any deceitful actions to Mr. Crawford, and to my knowledge have I violated no rule other than some unwritten courtesy. Now, if I have violated that, and as Your Honor knows, it’s a fine line between what is the letter of the law and what is customary among attorneys. Now, you overstep that a little bit and you are accused of being a sharp dealer, but my conscience is clear, and I did what I thought was right.
I had in mind defending my client’s case and I knew that I had to do it on the 26th. I knew that was the last day, and I knew I had to defend the case. Well, I did that. I had no way of knowing before that day was out that there would be any issue as to a default, and so I had a matter out at the Social Security Administration and wasn’t even aware for the rest of that afternoon whether there was a default, but I thought — any my purpose was to represent my client, and there was no purpose of any fraud on my part, that there never has been. I carefully weighed what I though was the law and I intended to act within it. I never at any point had any intention of fraud, nor did I think any representations or manifestations of fraud, and that is my position.
If I had thought that I had defrauded you in any way, I would have not wasted my client’s time to come up here. I would not have wasted my time to go through this thing if I had thought that I had done anything to defraud you, and that was the only basis upon which it would be worth doing. I am not naive enought to think you are going to go along and never find out about it. I thought that I had taken a valid default, and I don’t know if that answers your question, but you have got to realize that I took a default on behalf of my client representing her the best way I knew possible.

Taking as true and giving full faith and credit to everything appellant says in his defense, the fact remains that his action in taking the default judgment and final decree in the circumstances of the Wallace cases was a gross disregard of professional responsibility owed to the court and opposing counsel and a serious act of unprofessional and unethical conduct that demands suspension. Lawyers are charged with the duty to exercise the utmost good faith in their dealings with the courts, and opposing counsel as well as their clients. Appellant’s act not only violated the express provisions of T.R.C.P. 55.01, but the most elementary principles of everyday, ordinary fundamental fairness — a level of conduct expected of all men. Lawyers are charged with a higher degree of appreciation of what is just and fair and are expected to adhere to that higher standard. Restraining orders of the courts of this state must be obeyed and it is intolerable for a lawyer to participate affirmatively in their violation. Any doubts about their scope or effect should be taken up with the court issuing them immediately and prior to any action that could possibly be construed as being in contravention thereof.

Appellant directs our attention to the lawyer’s duty to represent his client zealously within the bounds of the law, as justifying his action. In his brief he cites the Code of Professional Responsibility, Canon 7, EC 7-2 wherein this sentence appears: “The bounds of the law in a given case are often difficult to ascertain.” Appellant says, in substance, that in this case he was determined to represent his client as zealously as possible and while his actions may have been marginal he was justified in resolving the doubt in favor of the advantage to his client. We are cited to a single sentence in EC 7-3 to that effect: “While serving as advocate, a lawyer should resolve in favor to his client doubts as to the bounds of the law.”

Neither EC 7-2 or EC 7 — 3 are concerned with the type of ethical conduct involved in this case. Those sections deal with questions involved in the advocacy of principles of law to wit: the line between urging frivolous interpretations of statutes, constitutional law and judicial opinions versus responsible, though perhaps unique interpretations.

Again guidance may be found in Gibson, Suits in Chancery, for those who are in doubt about the limits to which a lawyer may go in zealous fidelity to his client’s cause. 2 Gibson, Suits in Chancery § 1252 (5th ed. 1956) reads in part as follows:

1. Fidelity to Clients, and Its Limits. To your clients be true; but do not allow your fidelity to them to tempt you to be false to yourself. Fidelity to a client in Chancery goes no'further than what is lawful and proper to do and say in enforcement or protection of his legal or equitable rights. A Solicitor is under no legal or moral obligation to assert an illegal or inequitable claim, or to set up an illegal or inequitable defence [sic], or to take an unconscientious advantage of an adversary, in order to promote his client’s welfare. The law is an honorable profession, intended for the promotion of justice, and not a trade of trickery, for the purposes of fraud or oppression.

Appellant does not deny that he counseled with and advised his client that she could take the minor child of the parties to Atlanta, Georgia, in violation of the restraining order issued in the husband’s case. He insists he did nothing wrong because he did not read the restraining order prior to advising his client she could go to Atlanta, although the complaint with restraining order and summons had been served upon him, prior to giving that advice. He explained his position to the hearing committee as follows:

And after this happened, when, as I say, I received the divorce papers, they were served on me and at that time I hurriedly looked at the divorce complaint, not seeing any particular reason to read it in detail since I was familiar with the case and knew the issues, I looked at the prayers for relief and just concluded from that, among other things, that a mandatory injunction had been asked for on the part of the defendant or rather the husband, let’s put it that way, the plaintiff in that action. That a mandatory restraining order had been asked for granting the child’s custody to him pending the outcome of the case. Well, I knew that my restraining order on my action had granted the custody to my client. In other words, we had one restraining order, the restraining order that I had obtained, and I don’t remember exactly who issued it, granted custody to my client and that the defendant in my action, or the husband, was not to interfere with that custody nor was the husband to come near by client or her child or interfere with her or harm her in any way. And upon reading the prayer for relief concerning the mandatory restraining order, I said to myself, “Well, we’ve got a conflict here. I mean one judge has done one thing and one judge has done another thing.”
So realizing that the status quo was that my client had the child and that I hadn’t heard anything to the contrary, I just dismissed it from my mind saying, “Well, we’ve got the child and if they want to kick about this conflict in the restraining order, of course, that’s up to them to do.” But I saw the conflict and I just forgot about it in the sense that it was just one of these things.”

Appellant is charged with knowledge of the restraining order. Whether he actually read it or not is immaterial insofar as determining whether or not he was guilty of unprofessional conduct. His failure to read the restraining order, if that be the case, amounts to an incomprehensible act of irresponsibility on his part in carrying out his duties to the court and to his client and warrants the same treatment and punishment as if he read the restraining order and deliberately counseled his client to disregard it.

II.

On February 11, 1975, appellant filed a complaint in the Chancery Court of Hamilton County, Tennessee, seeking the appointment of Carrie W. Lazenby as conservator of the estate of her father, Curley Dixon. Charles DuPree was appointed guardian ad litem and he filed a formal answer on February 26, 1975. At a hearing on February 28, 1975, it appeared that Mr. Dixon was in a nursing home and that his social security checks were being paid directly to the home; that his only asset was a small home that was in a bad state of repair and was said to be valued in the range of $2,500 to $3,000. Apparently, on behalf of the conservator, the proposal at that hearing was that the house be repaired and rented to an unemployed son of Curley Dixon and that he pay some undetermined rent at such time as he might obtain employment. At the conclusion of the February 28 hearing the court declined to appoint a conservator and directed appellant to investigate the possibility of the sale of the property or to provide the court with a plausible proposal with respect to repairing the home for rental to a reliable tenant.

No order was entered following the hearing on February 28, 1975, but according to Chancellor Thrasher’s findings contained in an order entered on May 12, 1976, these events transpired subsequent to that hearing:

“After many weeks, the court requested Mr. Wright and the guardian ad litem to make a report concerning these and other related matters involved in this litigation. Mr. Wright did not honor the court’s request even though the guardian ad litem was present. At this point in time, the court re-set the hearing and at the supplemental hearing, no proposals were submitted in addition to the original proposal which was inadequate.”

On September 5, 1975, Mr. DuPree, the guardian ad litem, filed a motion to dismiss and to award attorney’s fees. That motion recited that at the first hearing of the cause petitioner failed to present sufficient need for relief and a workable arrangement by which a conservator might be appointed; that the cause was then continued to April 16, 1975, at which time further hearings were had and petitioner again failed to prove benefit to the ward by the appointment of a conservator and again failed to present a workable plan; that since that date no additional action had been taken and that it appeared to the guardian ad litem that the petition should be dismissed. That motion contains a certificate of service upon opposing counsel, the appellant herein. The record reflects that the February and April hearings were before Chancellor Wilkes Thrasher, Chancellor of Part I of the Chancery Court of Hamilton County, Tennessee. The motion filed on September 5, 1975, bears the stamp of Part II of the Chancery Court of Hamilton County and the record reflects that following the normal practice the clerk had assigned the case to Part II of the Chancery Court sometime in the interval between April and September. The guardian ad litem’s motion came on for hearing on September 15, was passed two weeks and on September 29 was passed for an additional week. The reasons for deferring the motion do not appear in the record. On October 24, 1975, Chancellor Franks entered an order requiring petitioner Lazenby to take “procedural steps” before November 21, 1975, or the cause would stand dismissed on that date.

On February 16, 1976, the guardian ad litem filed a motion to dismiss the cause and award him an attorney’s fee. The record does not reflect what action, if any, was taken on that motion which obviously did not recognize the effect of the order of October 24, 1975. On March 19, 1976, appellant filed a motion “to complete appointment of conservator and for order of sale.” A hearing was held on March 29, 1976, before Chancellor Franks that resulted in the appointment of Carrie Lazenby as conservator in the estate of Curley Dixon.

On March 12, 1976, Chancellor Wilkes Thrasher entered an order reprimanding appellant. The order recites the history of the proceedings in the Dixon case, substantially as set out herein, and also recites that the Chancellor directed his court officer to bring Mr. Wright before the court on Monday, March 10 to explain his failure to appear in court on a motion involving the setting of a case in which he was counsel of record (a case other than the Dixon conser-vatorship). The order of reprimand says that Mr. Wright’s response was that he had forgotten about it and that when asked about his absence at previous motion dockets and court hearings (presumably involving the Dixon case) “the court received a similar response.” After initially holding Mr. Wright in contempt, the court modified its judgment and entered a written reprimand.

With reference to the Curley Dixon proceedings the order of reprimand also contains the following paragraph:

“The court is of the opinion that Mr. Wright did not advise the Chancellor that the case had heretofore been dismissed or that this court had refused to make said appointment until certain conditions precedent were met.”

The Disciplinary Board found that appellant was guilty of unprofessional conduct in failing to respond to the orders of Chancellor Thrasher; in failing to move the Court to restore the action to the docket after it had been dismissed and in failing to divulge to Chancellor Franks the fact that Chancellor Thrasher had denied the appointment of a conservator on two prior occasions. However, the Disciplinary Board also correctly noted that no proof was adduced that any loss or prejudice resulted to the estate by the failure of petitioner to prosecute the conservatorship proceedings with diligence.

Appellant insists that he made an attempt to recite the history of the conserva-torship proceedings but was interrupted after a brief recitation by an admonition of Chancellor Franks that impelled him to abandon it and proceed with his presentation of the substance of the motion.

Chancellor Franks’ deposition was taken more than a year after the hearing, and he candidly acknowledged that “there may have been some mention of it but I don’t specifically recall anything.”

Appellant admits that he did not tell Chancellor Franks on March 16, that the Dixon conservatorship suit had been dismissed on November 21,1975. He says that he called a clerk prior to November 21, 1975, and she told him she would “pull the file and put it in the active files so that it would not be dismissed.” Further, appellant says he had had no prior experience with “automatic” dismissals and simply did not appreciate the import of the language that the case would stand dismissed “without further orders of the court.”

Appellant’s conduct in the Dixon case reflects a lack of understanding of, and compliance with, a lawyer’s responsibilities as an officer of the courts, and a lack of diligence in representing his client’s interests. It was clearly unprofessional, although clearly less serious than his unethical conduct in the Wallace cases, where his affirmative acts bring directly into question his moral fitness to practice law.

III.

We have read this entire record with great care and perhaps the most disturbing feature of this case is that appellant has convinced us that he believed he was doing the “right” thing when he took the default judgment and divorce decree in the Wallace case and that he continues to entertain that view today.

We have not discussed herein the facts and contentions of the parties with respect to appellant’s petition in the Wallace cases to hold Mr. Crawford in contempt. Suffice it to say that we are of the opinion that the punishment imposed by the hearing committee and the chancellor is justified by appellant’s unethical and unprofessional conduct in advising his client to violate the restraining order and the default judgment and final decree episode in the Wallace cases, standing alone.

We think the Chancellor’s recommendation with respect to reinstatement was premature and inappropriate. When appellant’s petition for reinstatement comes before a hearing committee its decision should be made on the basis of whether the evidence presented at that time satisfies the criteria for reinstatement prescribed in Rule 42, Section 19.3.

Otherwise, the judgment of the Chancery Court of Hamilton County is affirmed.

Disciplinary counsel and appellant are directed to agree on the date of the entry of an order pursuant to Section 18.3 of Rule 42, not more than fifteen days after the date this opinion is released, and also to comply with all other provisions of Section 18.

Costs are adjudged against appellant.

HENRY, C. J., and COOPER, BROCK and HARBISON, JJ., concur.