This writ of error brings to this court for review a judgment disbarring plaintiff in error from the practice of law in the State of Florida. The motion to disbar was filed by the State Attorney on September 20, 1923, in the Circuit Court of the Seventeenth Judicial Circuit in and for Orange County, pursuant to an order of Honorable C. O. Andrews, Judge of said court, directing the motion to be made. From time to time thereafter upon application orders were made by said judge enlarging the time for pleading by defendant to said motion, sustaining a demurrer to the motion, allowing the filing of an amended motion, and overruling a demurrer thereto. After which, on March 3, 1924, the following order was entered by said judge:
"This cause coming on to be heard and set for trial and the undersigned Circuit Judge of said Circuit feeling that he is disqualified to act as trial Court upon the ground that the charges in the several counts of the motion to disbar are based upon alleged facts which this Court under *Page 390 the Statute had to investigate before requesting the State Attorney to file motion to disbar, and therefore had to form an opinion as to those facts:
"Therefore, acting upon the Statutes of this State, it is considered by this Court that he is disqualified to sit and try said cause by reason of having previously formed an opinion."
The judge having entered this order disqualifying himself, by order of the Governor, Honorable J. C. B. Koonce, Judge of the Sixteenth Judicial Circuit of Florida, was designated and assigned to exercise all the functions of a circuit judge in and for said Seventeenth Judicial Circuit in so far as the disposition of the said disbarment proceedings against said defendant were concerned. Thereafter the Judge of the said Sixteenth Judicial Circuit did proceed in said Seventeenth Judicial Circuit to hear and determine said cause and enter judgment therein disbarring the defendant from the practice of law.
The conclusion which we have reached renders it unnecessary to refer to the grounds of the motion for disbarment or to the evidence offered. The order of disqualification is assigned and urged as error requiring a reversal of the judgment.
Proceedings for disbarment of an attorney at law in this State are statutory. Such proceedings are initiated by making known to the judge of the circuit that an attorney has been guilty of such acts or conduct as to unfit him for the profession. Whereupon the judge directs the State Attorney to institute formal proceedings by motion to disbar the attorney against whom the charges have been made. The statute provides: "Whenever it shall be made known to any judge of the circuit that any attorney-at-law, practicing in any of the courts in his judicial circuit, has been guilty of dishonest conduct, or habits of general immorality *Page 391 (or other acts, enumerating them) which unfit him for association with the fair and honorable members of the profession, it shall be the duty of such judge to direct the State's Attorney of the circuit to make in writing a motion, in the name of the State, to disbar such attorney, setting forth in the motion the particular acts or conduct for which the attorney is sought to be disbarred." Sec. 2554, Rev. Gen. Stats.
The attorney against whom the motion to disbar is filed is required, within three days after service thereof, to file his answer thereto under oath. And upon the filing of an answer denying the acts or conduct alleged in the motion as grounds for disbarment, the court hears the evidence and if, in the judgment of the court, the allegations of the motion are sustained by the preponderance of the evidence, the motion is granted and judgment entered accordingly. Secs. 2555, 2556, Rev. Gen. Stats.
The inquiry required of the judge to be made preliminarily before it can be said that it has been "made known" to himprima facie that grounds for disbarment exist, together with the conclusion reached upon which he directs the motion to be filed, is not a legal disqualification of the judge to proceed further in the cause. The statute is susceptible of no other meaning than that the judge directing the motion to be filed, if not otherwise disqualified, shall proceed to hear and determine the issues made. But this court has said that a "complaint against an attorney * * ought not to be received and acted on unless made on oath. * * It has been held by some of the courts that the charge made must be specific and particular, so that the officer may be aware of the precise nature of the charge he is to meet; and we think that is the correct rule." State v. Kirke, 12 Fla. 278. Until this is done it has not been "made known" to the judge that the alleged misconduct *Page 392 of the attorney is of so grave a character as to warrant the filing of a motion to disbar. And if, as in this case, the judge, after considering the complaint filed with him and directing the proceedings to be instituted, reaches the conclusion and so adjudges that the "opinion" formed disqualifies him to proceed further in the cause this adjudication should not be set aside unless it clearly appears to be erroneous.
In this case the record does not disclose the charge made or the evidence in support of it submitted against the attorney on which the judge based his direction to file the motion to disbar. His order of recusation may be construed to mean that he considered himself incompetent to proceed further as judge in the cause because of "having previously formed an opinion" upon the questions involved and necessary to be determined. And while a court should not hesitate to exercise jurisdiction which it clearly possesses, and a judge's refusal to act on account of some disqualification existing in his own mind is not conclusive (33 Cyc. 1012; State ex rel. v. Young, 31 Fla. 594, 12 South. Rep. 673), yet, because of the right of every litigant to a trial by a tribunal uninfluenced by a taint of interest or partiality, we regard the language of the order as expressing a state of mind justifying the judge in declining to further proceed in the cause.
This conclusion results in a reversal of the judgment for the reason that if the disqualifying opinion reached by the judge, as recited in his order, resulted from the preliminary investigation made by him, the orders subsequently entered in the cause anterior to his recusation are void. Sec. 2528, Rev. Gen. Stats.; Sewell v. Huffstetler, 83 Fla. 629, 93 South. Rep. 162.
Under the liberal system of amendments to pleadings or proceedings obtaining in this State (Sec. 2629, Rev. Gen. *Page 393 Stats.) it was not error, after sustaining the demurrer of defendant to the motion to disbar, to allow, upon application, an amended motion to be filed by the State Attorney.
The judgment is reversed.
WHITFIELD, ELLIS, TERRELL AND STRUM, J. J., concur.
BROWNE, J., specially concurs in conclusion.