State ex rel. Kehoe v. McRae

Citations

• 49 Fla. 389

Syllabus

<p>MANDAMUS — IS PROPER REMEDY TO COMPEL CLERK TO ISSUE COMMISSION FOR DEPOSITIONS OF ABSENT WITNESS — DISBARMENT OF ATTORNEY — IS NOT A CRIMINAL PROCEEDING REQUIRING CONFRONTATION OF ACCUSED WITH WITNESSES AGAINST HIM — DEPOSITIONS OF-ABSENT WITNESSES TAKEN ON COMMISSION ADMISSIBLE IN IF OTHERWISE COMPETENT.v</p> <p>1. The issuance of a commission by tbe Clerk of Circuit Court to take the depositions of an absent witness, when all ■the preliminary steps prescribed by law and the rules of practice leading up to the issuance thereof have been complied with, is a mero ministerial act, and, ordinarily, he has no right to refuse its issuance because he may be of the opinion that the deposition when taken under it will • be incompetent or inadmissible evidence in the particular cause in which it is proposed to be used, but it is his duty to issue the commission wh,en properly applied for, leaving, the admissibility of the evidence that it produces to be passed upon by the court when tendered, and he will be compelled by mandamus to perform such ministerial act.</p> <p>2. The writ of mandamus will never be granted when if issued it would prove unavailing, or when compliance with it would be nugatory in its effects, or would be without beneficial results and fruitless to the relator.</p> <p>3. Disbarment proceedings against an attorney are not designed as a penalty .or punishment for any malfeasance or dereliction of duty by an attorney, but are solely for the purpose of purging the roll of legal practitioners of an unworthy or disreputable member. In such a proceeding no fine-, imprisonment or other punitivp sentence can be imposed, but the judgment therein can only be one simply revoking the formerly granted permit to practice law, and striking the name of the derelict from the roll of attorneys.</p> <p>'4. A disbarment proceeding against an attorney is not a criminal prosecution, 'and does not fall within that class of cases that require the charges to be preferred by i