On Rehearing.
As was pointed out on original deliverance, the defense interposed by Stockton Cooke, Jr., in this court was slightly more than perfunctory and consisted of a pro se brief of a little less than three pages. However, upon application for rehearing, Mr. Cooke employed counsel who fully and diligently briefed the cause. In order to meticulously preserve the rights of the petitioner, we suspended execution pending a determination of the application for rehearing. However, this court has said in an unbroken line of cases that matters not presented on appeal cannot be considered on application for rehearing. In our original opinion we carefully considered every matter brought to the court’s attention at that time.
There is, however, one feature of the application for rehearing which the court, under its inherent power to do full justice, believes to be worthy of comment and discussion.
The ex parte affidavit of a person not a party to this proceeding is filed in this court for the first time on application for rehearing. Such affidavit is to the effect that the affiant secretly took from petitioner’s desk the debtor’s check which petitioner had previously collected from his client’s debtor. According to the affidavit this check had previously been endorsed by the petitioner and was the basis of Charge One. The affiant states that she cashed the check, retained the money and did not tell petitioner or anyone else of her theft of the check until just prior to the filing of the affidavit, and after deliverance of the original opinion in this case. The brief on rehearing directs this court’s attention to its power to make independent inquiry into the merits of a disbarment case. It is urged that, pursuant to Section B, Rule 29 of the Amended Rules Governing the Conduct of Attorneys in Alabama, heretofore approved by this court, that we should order the taking of additional testimony touching the question raised for the first time on rehearing by the aforementioned affidavit.
It is true that in consideration of disbarment proceedings this court possesses inherent power, as well as specific statutory authority, to take such action as is agreeable to its judgment. Ex parte Thompson, 228 Ala. 113, 152 So. 229, 107 A.L.R. 671; Code of Alabama 1940, Tit. 46, § 25. In *487disbarment proceedings there can be no doubt that under a clear showing of extraordinary and demanding circumstances that this court has the power of independently pursuing factual questions even though raised for the first time on rehearing. In the case before us, however, even if we assume for the purposes of argument, the complete truth and accuracy of the statements contained in the ex parte affidavit, we are nevertheless of the opinion that the prior judgment of this court should not be disturbed. Even if the endorsed check which the petitioner had received had been stolen from him, it would not relieve him of the responsibility of making remittance to his client in the face of the repeated demands by his client for payment and the several promises of the respondent over a long period of time that payment of the collected money was forthcoming. Petitioner’s guilt of the misconduct is clear. His duty to remit the funds which he had collected and held in trust for his client was unqualified.
We have given due consideration to whether the matter presented on rehearing justifies a modification of the order of disbarment. We have concluded that it docs not for the reasons previously stated in the original opinion. This being our conclusion, the court feels that it would not be justified in resorting to the extraordinary procedure of taking additional testimony in this cause.
If the petitioner should hereafter elect to exercise his right to apply for reinstatement as a member of the Bar, the matter contained in the ex parte affidavit may be presented along with proof of his character and fitness at the time of his application for reinstatement to the Board of Bar Commissioners, as tending to mitigate the moral taint of the offense for which petitioner has suffered disciplinary action.
Opinion extended and application for rehearing overruled.
LIVINGSTON, C. J., and SIMPSON, and GOODWYN, JJ., concur.