(209 P.) the defendant for the amounts claimed and f It does not appear that any promissory for attorney's fees, declared a lien upon the automobile, and decreed a foreclosure thereof, ordering a sale under the decree. On appeal the defendant urges the following errors: "That the court erred in overruling defendants' demurrer to plaintiff's complaint. "That the court erred in entering its judgment and decree against defendant Oregon Scenic Trips Company on said complaint, for the reason that said complaint does not state facts sufficient to constitute a cause of suit against said defendant." [1] We may view this proceeding either in the aspect of an action at law or else as a suit to foreclose a lien under sections 10272 et seq., Or. L., for the distinction between actions at law and suits in equity is still maintained in Oregon. [2, 3] The demurrer may be disregarded as to the first assignment, because the circuit court had jurisdiction of the subject of the action in that it had a right to try the kind of proceeding, whether it be an action or a suit. It likewise had jurisdiction of the person of the answering defendant, because it appeared generally in the case. The complaint contains enough matter in the second and third paragraphs to sustain a cause of action for goods sold and delivered, the obligation of the defendant to pay for them being one implied by law. It is not an express agreement or a personal obligation of the defendant. The pleading, therefore, did contain a sufficient statement of a cause of action, and the demurrer contending that it did not was properly overuled. Considering the proceeding as an action at law, the court was authorized on the defendant's refusal further to answer, to render a judgment at law for the face of the claim, but without additional sums as attorney's fees. [4, 5] The deliverance of the court is not a Judgment or decree for want of answer. The defendant did answer by demurrer, tendering an issue of law. However ill-founded its contention, the pleading on its behalf does amount to an answer. It appealed, and in this court has the right to urge for the first time that the complaint does not state facts sufficient to constitute a cause of suit. That question is before us for decision, if we contemplate the proceeding as a suit to foreclose a lien. [6] The general statute relating to the foreclosure of liens upon real or personal property (section 422, Or. L.) provides that— "In such suit, in addition to the decree of toreclosure and sale, if it appear that a promissory note or other personal obligation for the payment of the debt has been given by the mortgagor or other lien debtor, or by any other person as principal or otherwise, the court shall also decree a recovery of the amount of such debt against such person or persons, as the case may be, as in the case of an ordinary decree for the recovery of money." note or other personal obligation for the debt here involved was given by any one. For want of this, there can be no personal decree in equity against the defendant, as distinguished from a law judgment. Treating the matter as a suit to foreclose a lien, all that could be accomplished. if the case were well pleaded, would be to ascertain the amount of plaintiff's claim and impose upon the property a lien to that extent, authorizing a sale of the property only, for the satisfaction of the lien, without any personal judgment against the debtor for a possible deficiency. [7, 8] The statute under which it seems the plaintiff claims a lien provides, in substance, that every person who expends labor, skill, or materials upon any chattel at the request of its owner shall have a lien upon said chattel for the contract price for all such expenditure or for the reasonable worth thereof, notwithstanding the fact that the possession of the chattel has been surrendered to the owner. It is further laid down that "In order to make such lien effectual the lien claimant shall within sixty (60) days from the date of delivery of such chattel to the owner thereof, or his duly authorized agent, file in the office of the county clerk of the county in which said labor, skill, and materials were expended on such chattel a lien notice, which notice shall state the name of the claimant, the name of the owner," etc. Sections 10272 and 10273 Or. L. Certain requirements for the notice are set out in the enactment. Such liens are creatures of statutes which extend the commonlaw lien for labor bestowed upon a chattel, and one who would enjoy the benefit of the law must bring himself within its terms. It does not appear anywhere in the complaint or in the notice of lien that the labor, skill or materials described were expended in the county of Clatsop, where the notice was filed, or for that matter even in the state of Oregon. For this reason, the complaint does not state enough to constitute a cause of suit as distinguished from a cause of action. Campen v. Jamieson, 88 Wash. 109, 152 Pac. 679. The court, therefore, was without authority to impose a lien upon the property or to direct a foreclosure thereof. The utmost. that it could do was to overrule the demurrer, treat the complaint as containing enough to sustain an action at law, and render thereon a judgment. Formerly, as stated in Ming Yue v. Coos Bay Railroad Co., 24 Or. 392, 33 Pac. 641, it was the rule that— "Under the provisions of the Oregon law retaining the distinction between suits in equity and actions at law, though abolishing the difference in the forms, a complaint for the foreclosure of a mechanics' lien, which does not state a cause of suit, cannot be retained and treated as an action at law to recover money." We have seen that there is enough in the plaintiff's initial pleading to support a judgment at law, but not enough, however, to serve as a foundation for a decree in equity. We cannot turn him out of a court of law, for the reason that he has stated a cause of action at law. The aspect of his case contemplating equitable relief can well be ignored as surplusage because of insufficiency of his complaint for that purpose. Moreover, since the decision of the Ming Yue Case, section 390, Or. L., has been amended and now contains this provision: "No cause shall be dismissed for having been brought on the wrong side of the court. The plaintiff shall have a right to amend his pleadings to obviate any objection on that account." The plaintiff is not complaining of the result, nor has he applied to amend his pleading. As to the defendant, the record shows that it treated the case as an action at law by saying to the trial court in its demurrer: "The complaint does not state facts sufficient to constitute a cause of action." try the controversy as an action at law; and that a judgment as in such an action ought not to be entered against it until an opportunity is afforded to present the cause as an action at law. The opposing idea is that the defendant had its opportunity for that purpose, and, as the record discloses, availed itself of it by demurring as at law, resting its whole case on that contention by refusing to plead further, although it might then have applied to the trial court for leave to defend further either at law or in equity. In accordance with the view of the majority, the final order of the circuit court from which, the appeal was taken is reversed, and the cause is remanded for further proceedings. SMITH v. OREGON SCENIC TRIPS (Supreme Court of Oregon. Oct. 3, 1922.) Appeal from Circuit Court, Clatsop County; J. A. Eakin, Judge. Hesse, of Astoria, on the brief), for appellant. It stood upon the issue thus tendered, alAction by Walter B. Smith against the Orethough it would not have waived its conten-gon Scenic Trips Company and others. From tion on the demurrer by answering over. To a decree for plaintiff, the defendant named send the case back for further proceedings appeals. Reversed and remanded. would be a disposition of it for which neither party has asked, and would unnecessarily prolong litigation. The defendant has treated the proceeding as an action at law, and has shown no cause why it should be exonerated from the determination of the circuit court on that theory. It is not amiss to treat the case on the basis established by the defendant's only pleading, its demurrer. The court was right in its ruling upon the demurrer and wrong in its final deliverance to the extent of its attempt to foreclose a lien, and hence the final order of the circuit court ought to be modified so as to allow the plaintiff to recover the face of his claim, as in an action at law, but without attorney's fees. [9] The foregoing is the conclusion of the writer. The other members of Department No. 1 of this court, before which the cause was argued, while concurring in the ruling that the complaint does not state facts sufficient to constitute a cause of suit, dissent from the conclusion that the final order of the circuit court should be modified only. The contention of the writer's associates is to the effect that, although the demurrer assails the complaint by declaring that it "does not state facts sufficient to constitute a cause of action," yet the complaint was drawn, the cause was tried by the attorneys, and the issue was heard and determined and a decree rendered by the circuit court on the theory that the proceeding was and is a suit in equity; that the appellant has not had an opportunity to BURNETT, C. J. This case is identical in principle with McCann v, Oregon Scenic Trips Co. (Or.) 209 Pac. 483, this day decided and which governs here. Accordingly, the decree of the circuit court is reversed, and the cause remanded for further proceedings. MCBRIDE, HARRIS, and RAND, JJ., con cur. STATE ex rel. MONTGOMERY et al. v. (Supreme Court of Oregon. Oct. 3, 1922.) The misconduct under which Or. L. § 1091, will disbar is not limited to acts committed strictly in a professional character, but extends to all such misconduct as would have prevented an admission to the bar. 2. Attorney and client 53 (2)-Misconduct of attorney must be clearly established to warrant disbarment. A disbarment proceeding is a civil, and not a criminal proceeding, and yet a mere preponderance of the evidence is not sufficient to warrant disbarment or suspension, but the guilt of the attorney must be clearly established. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 3. Attorney and client (209 P.) to show misconduct in handling estate. In disbarment proceedings under Or. L. § 1096, evidence held to show that defendant was guilty of misconduct in handling an estate and litigation for a blind, aged, and feeble old woman. 4. Attorney and client 53(2)-Evidence held, Clarence H. Gilbert, Clarence J. Young, and J. F. Boothe constitute the board of chancellors of the association. Under the rules of the organization it is the duty of the chancellors and the grievance committee, if they find reasonable grounds to believe an attorney at law guilty of conduct meriting disbarment, to initiate a disbarment proceeding against such attorney. 53(2)-Evidence held to show misconduct in handling litigation. In a disbarment proceeding under Or. L. § 1096, evidence held to show misconduct on part of attorney in handling litigation, collecting judgment, and failing to give the client his share. 5. Attorney and client 53 (2)-Evidence held insufficient to show misconduct in handling bankruptcy proceeding. In disbarment proceeding under Or. L. 8 1096, evidence held insufficient to show that attorney converted to his own use money which was given him to institute bankruptcy proceedings. 6. Attorney and client 53(2)-Evidence held insufficient to show that attorney permitted taxes to become delinquent. In a disbarment proceeding under Or. L. § 1096, evidence held insufficient to show that attorney permitted taxes for which the client had given him money and requested him to pay to become delinquent. 7. Attorney and client 53(2)-Evidence held certain building, and that a certain corporation In a disbarment proceeding under Or. L. 1096, evidence held insufficient to show that attorney fraudulently wrote an assignment on the back of stock certificates which were given as collateral security for a loan. In Banc. Disbarment proceeding by the State, on the relation of Hugh S. Montgomery and others, against George Estes. Defendant disbarred. The persons composing the grievance committee and the board of chancellors of the Multnomah Bar Association caused to be filed in this court on June 7, 1922, pursuant to section 1096, Or. L., an accusation containing six charges against George Estes, a member of the bar of this state. The accused denied all the charges. The trial was conducted in the presence of all the members of this court sitting in bank, and therefore the court had the benefit of seeing and hearing all the witnesses testify, except the witness J. H. Hobart, whose testimony was taken on written interrogatories. Section 1091, Or. L., is given the following heading in the present Code: "An attorney may be disbarred for unprofessional conduct." This section was enacted in 1901 (Laws 1901, p. 67), and was entitled, “An act to regulate disbarment proceedings," and the body of the act read as follows: "Section 1. 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." The statute was codified as section 1066 in Bellinger & Cotton's Annotated Codes and Statutes of Oregon, and was there given the above-quoted heading. The statute appears with the same heading in Lord's Oregon Laws as section 1091. This court, in an opinion rendered in Ex parte Tanner, 49 Or. 31, 88 Pac. 301, stated that the interpretation of the language of the act was involved in doubt, but suggested that the statute probably meant: "That an attorney shall be disbarred when it appears that his general moral character or unfitness is such that, if he were applying for Bradley A. Ewers and Robert F. Maguire, admission, his application would be denied." both of Portland, for plaintiffs. B. F. Mulkey, E. L. Fraley, and D. D. Hail, all of Portland, for defendant. PER CURIAM. The Multnomah Bar Association is an organization composed of attorneys at law who reside in Multnomah county and have been admitted to practice law in the courts of this state. Hugh S. Montgomery, Albert B. Ridgway, Bert E. Haney, Robert F. Maguire, Homer D. Angell, and John K. Kollock are the members of the grievance committee of the association, and The statute was amended in 1915 so as to read as follows: "Any member of the bar of this state shall be disbarred by the Supreme Court, upon proper proceedings for that purpose, whenever it shall appear to that court that his conduct has been such that if he were then applying for admission to the bar his application should be denied." Chapter 259, Laws 1915; section 1091, Or. L. It is plain that the heading given to the section in its original form in the Bellinger For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes dition precedent to the privilege of practicing law and of continuing in the practice thereof." In re Thresher, 33 Mont. 441, 84 Pac. 786, 114 Am. St. Rep. 834, 18 Ann. Cas. 845. & Cotton and in the Lord compilations is not | of that good moral character which is a conan appropriate heading for the statute in its amended and present form. Under the law as it now is any member of the bar of this state "shall be disbarred" whenever it shall appear that his conduct has been such that "if he were then applying for admission to the bar his application should be denied." It is provided by section 1077, subd. 2, Or. L., that an applicant for admission must show that he is a person of good moral character. This court has said: "The immorality that rejects an applicant is ground upon which to disbar." In re Crum (Or.) 204 Pac. 948. We quote from 6 C. J. 584: "As good character is an essential qualification for the admission of an attorney to practice, he may be removed whenever he ceases to possess such a character." [1] The misconduct which under our statute will disbar "is not limited to acts committed strictly in a professional character, but extends to all such misconduct as would have prevented an admission to the bar." In re 0, 73 Wis. 602, 42 N. W. 221. The words "good moral character" include "all the elements essential to make up such a character. Among these are common honesty and veracity, especially in all professional intercourse." In re O- 73 Wis. 602, 42 N. W. 221; In re Crum (Or.) 204 Pac. 948; 1 Thornton on Attorneys at Law, § 62; 6 C. J. 573. For convenience the six charges may be designated respectively as the Willoughby, Hansen, Schrump, Baird, Meyers, and the Roberts charges. The Willoughby Charge. [3] The accusation alleges that prior to November 24, 1916, George Estes was em. ployed as an attorney by John Willoughby and Anna Willoughby to negotiate a loan to Julia Kerslake on certain real property in Multnomah county; that on about November 24, 1916, the defendant, as such attorney, in behalf of John and Anna Willoughby, loaned $500 to Julia Kerslake, and took her note for that amount, secured by a mortgage on the land, and that on April 11, 1917, as such attorney for John and Anna Willoughby, he loaned an additional sum of $500 to Julia Kerslake, and received her note secured by a mortgage on the real property; that on February 25, 1920, the amounts due on the notes were paid to George Estes as the at torney in fact for Anna Willoughby, and as such attorney in fact he executed a release of the mortgages; that George Estes willfully converted the money to his own use, and has not accounted for any of it, except on about May 15, 1922, and after he had been [2] A disbarment proceeding is a civil and tried before the grievance committee and not a criminal proceeding, and yet a mere chancellors of the Multnomah Bar Associa preponderance of the evidence is not suffi- tion, he paid $500 to the Security Savings & cient to warrant disbarment or suspension. Trust Company of Portland. It is also The guilt of the attorney must be clearly es- averred in the accusation that the defendtablished. In re Crum (Or.) 204 Pac. 948; Ex ant was employed by Anna Willoughby to parte Kindt, 32 Or. 474, 52 Pac. 187. The act as attorney in the estate of John Wilimposition of punishment for the commission | loughby, deceased, which was being adminisof criminal offenses is provided for by other tered in the probate department of the cir proceedings authorized for that purpose, but cuit court for Multnomah county, and, knowa disbarment proceeding is entertained as ing that Anna Willoughby "is a blind, aged, "necessary for the protection of the court, and feeble old woman" the defendant ob the proper administration of justice, and the tained from her a power of attorney to repdignity and purity of the profession, and for resent her; that soon after giving the power the public good and the protection of cli- of attorney Anna Willoughby learned that ents." Ex parte Finn, 32 Or. 519, 52 Pac. the defendant had drawn funds out of her 756, 67 Am. St. Rep. 550; Ex parte Tanner, bank account and the funds belonging to said 49 Or. 31, 88 Pac. 301. As was said in Attor-estate; that thereupon, on March 10, 1919, ney's License, 21 N. J. Law, 346, the power she revoked Estes' power of attorney, and to reject an applicant for admission or to made a declaration of trust with the Secur disbar an attorney already admitted "is one ity Savings & Trust Company which providof great delicacy, and should be exercised ed for the handling of her entire estate and with extreme caution, and with a scrupulous all matters by the trust company; that noregard for the character and rights of the tice of such declaration of trust and of the applicant. But on the other hand, the stand-revocation of the power of attorney was iming of the profession must not be disregard-mediately conveyed to the defendant, and a ed, nor must the court shrink from the per- demand was made upon him by the trust formance of a clear duty however embarrass- company for an accounting of all moneys coling." The ultimate purpose of a disbarment lected and disposed of for Anna Willoughby proceeding is "to ascertain whether the ac- individually or for the estate of John Wilcused is worthy of confidence and possessed loughby, deceased; that the defendant mis (209 P.) appropriated the moneys of Anna Willough- | cide the question of the propriety or reasonby and of said estate, and has refused to ac- ableness of such charges, we shall treat them count for the money collected by him and as correct items. According to the bill of drawn from the bank. particulars, the defendant received from the Willoughbys directly or from other persons for them the total sum of $12,784.10, and the disbursements made for the Willoughbys, together with attorney's fees charged against them, aggregate $13,294.86, leaving a balance of $510.76 alleged to be due Estes at the time of the trial. John and Anna Willoughby were husband and wife, and he owned and drove a taxicab. John Willoughby died November 7, 1918. On November 15, 1918, Anna Willoughby gave to George Estes a general power of attorney. Under date of December 27, 1918, Anna Willoughby revoked the power of attorney which she had given to Estes. On March 10, 1919; Anna Willoughby, as trustor, executed a declaration of trust to the Security Savings & Trust Company of Portland as trustee. It is admitted that in behalf of John and Anna Willoughby the defendant loaned $500 to Julia Kerslake on November 24, 1916, and that he loaned a like amount to her on April 11, 1917. It is also admitted that Julia Kerslake paid the notes representing the loans, and that Estes received the money and satisfied the mortgages given as security for the notes. The accusation charges that Estes converted the money to his own use. The defendant says that he has accounted for the money and that Anna Willoughby is indebted to him. According to the testimony of the attorney for the trust company, the Kerslake mortgages were satisfied of record November 25, 1920, by George Estes as attorney in fact for Anna Willoughby, notwithstanding the power of attorney had been revoked December 27, 1918. Estes claimed that he did not know of the revocation of the power of attorney until about one month before the trial. According to the bill of particulars submitted by Estes, $217 was paid on the principal of one of the Kerslake notes on October 10, 1917, and the balance due on such note as well as the whole of the principal due on the other Kerslake note, or a total of $783, with interest, was paid to Estes on April 10, 1918. In short, Estes received all the money due on the Kerslake notes before the death of John Willoughby and prior to both the execution of the power of attorney and the revocation. Possibly before and certainly about the time of the execution of the declaration of trust dated March 10, 1919, the trustee made a demand upon Estes for an accounting. The defendant delayed and postponed the preparation and submission of a statement of the account. The record contains a statement dated January 2, 1920, and one dated December 31, 1920. The first of these two statements purports to cover a period beginning with May 10, 1917, and ending with January 1, 1920, showing a balance of $299.85 due Anna Willoughby. The second statement purports to cover a period beginning with May 10, 1917, and ending December 30, 1920, with a balance of $74.75 due George Estes. Neither one of these two statements mentioned the payments made on the Kerslake notes on October 10, 1917, and April 10, 1918. According to the bill of particulars, Estes paid Anna Willoughby $900 in installments of $100 each between April 1, 1919, and November 10, 1919, and in May, 1922, he paid $500. If the defendant had rendered a complete statement of the account within a reasonable time after the demand for an accounting, it would have shown a considerable balance in favor of Anna Willoughby; but, instead of rendering a statement with rea Estes acted as attorney for John and Anna Willoughby through a period of several years, beginning with 1915, and during that period he received from the Willoughbys and from other persons for the Willoughbys moneys aggregating several thousand dollars, and during the same period he disbursed several thousand dollars. At the trial it was said by Estes that Anna Willoughby is the sole heir of John Willoughby; and hence no attempt is made to ascertain the amount of money received or disbursed in behalf of John Willoughby or his estate as distinguished from moneys received or disbursed in behalf of Anna Willoughby alone. At the trial, which was begun on July 10 and concluded on July 12, 1922, a detailed statement of account designated "Willoughby bill of particulars" was received in evidence; and this bill of particulars purports to be a detailed statement showing the transactions beginning with 1915. We do not in this proceeding attempt to pass upon the propriety or reasonableness of any of the items making up this bill of particulars. We assume throughout this proceeding that the statement is an accurate account so far as it relates to moneys received and expended. Nor do we attempt to pass upon the propriety or reasonableness of the charges made for legal services. Most of the fees charged for legal services were approved by either both or one of the Willoughbys, and the fees so approved are not subject to re-examination, but possibly a portion | sonable promptness, the defendant delayed of the fees charged are controverted by An- and procrastinated, and at the end of the na Willoughby, and so we do not attempt in year rendered an incomplete statement, and this proceeding to ascertain whether these still a year later submitted another incompossibly controverted items are proper or plete statement. The payment of the nine reasonable; but, without attempting to de-installments between April 1, 1919, and No |