This is an appeal from an order of the District Court for the Southern District of California made in the above proceeding, permanently disbarring appellant from practicing in that court. Also before the court is a motion to strike from the record an opinion, filed after the notice of appeal was filed.

A. A federal court is without jurisdiction to disbar an attorney for a contempt not committed in or near a hearing then being conducted, where due process is denied him by failing to give him notice that his disbarment is being considered or by failing to give him an opportunity to prepare and present a defense.

In the proceeding below appellant obtained for his client, the Los Angeles County Pioneer Society, hereafter Pioneer, and against the Historical Society of Southern California, hereafter Historical, a temporary restraining order restraining until the further order of the court, any action by the Superior Court of Los Angeles County in the case then entitled “In the Matter of the Dissolution and Winding Up of the Los Angeles County Pioneer Society, a Corporation.” In that Superior Court case a proceeding was pending for the distribution of certain funds under the control of Plistorical, in which Pioneer, in its bankruptcy proceeding, claimed an interest. The temporary restraining order was granted on July 26, 1954, by the District Court, District Judge Harrison acting.

On July 30, 1954, the District Court, sua sponte, Judge Mathes acting, proceeded to hold a session in its Pioneer bankruptcy proceeding. The court then took judicial notice of a decision of the California Supreme Court which it so construed that it required a setting aside of the order of the District Court of July 26th so restraining the Los Angeles Superior Court. The first intimation the appellant had that the District Court was considering anything other than the setting aside of the restraining order came at the end of the session. Then after a finding by the court that appellant committed a fraud on the court by procuring the restraining order, and the reading of an order of disbarment, already prepared by the court, the record concludes:

This is not a case where the contempt was in the proceeding in which it was adjudicated. On the question whether the district court lacked jurisdiction to proceed to render the judgment of disbarment, it -is necessary .to show that appellant was deprived of his property in his right to practice by conduct amounting to a denial of a constitutional right such as due process of law.

Such lack of jurisdiction is held in Frank v. Mangum, 237 U.S. 309 , 35 S.Ct. 582 , 59 L.Ed. 969 , where the question, as here, was one of due process under the Fourteenth Amendment' which covers that of the Fifth Amendment. The Court at pages 326-327 of 237 U.S., at page 587 of 35 S.Ct., stated: “It is therefore conceded by counsel for appellant that, in the present case, we may not review irregularities or erroneous rulings upon the trial, however serious, and that the writ of habeas corpus will lie only in case the judgment under which the prisoner is detained is shown to be absolutely void for want of jurisdiction in the court that pronounced it, either because such jurisdiction was absent at the beginning, or because it was lost in the course of the proceedings. And since no question is made respecting the original jurisdiction of the trial court, the contention is and must be that by the conditions that surrounded the trial, and the absence of defendant when the verdict was rendered, the court was deprived of jurisdiction to receive the verdict and pronounce the sentence.” (Emphasis supplied.)

• This was followed by Johnson v. Zerbst, 304 U.S. 458 , 58 S.Ct. 1019 , 82 L.Ed. 1461 , respecting a violation of the Sixth Amendment. There the Court, relying on Frank v. Mangum, stated at page 468 of 304 U.S., at page 1024 of 58 S.Ct.: “If the accused, however, is not represented by counsel and has not competently and intelligently waived his constitutional right, the Sixth Amendment stands as a jurisdictional bar to a valid conviction and sentence depriving him of his life or his liberty. A court’s jux-isdiction at the beginning of trial may be lost ‘in the course of the proceedings' due to failure to complete the court — as the Sixth Amendment requires — by providing counsel for an accused who is unable to obtain counsel, who has not intelligently waived this constitutional guaranty, and whose life or liberty is at stake. * * *"

Appellant’s contention is that such a proceeding without notice of its purpose and with its failure to afford an opportunity to oppose the disbarment, contained in the already prepared order therefor, denies him the due process of the Fifth Amendment in depriving him of his property in the right to practice law in the district.

The lengthy brief of the District Court can be summarized as contending that the conduct of the appellant was so certainly a fraud on Judge Harrison on July 26th that on July 30th the court, with Judge Mathes presiding, was entitled to impose the extreme penalty of disbarment, without opportunity to offer any possible defenses or extenuating circumstances.

As to there being a violation of the Fifth Amendment, that is determined by this court of appeals in a disbarment case practically identical with that before the District Court, United States v. Hicks, 9 Cir., 37 F.2d 289 .

In the Hicks case it appears at page 292 that, as here, one Raine Ewell, Hicks’ attorney, was disbarred in a proceeding for a different purpose, the settlement of a bill of exceptions. The debarment, permanently from practice, was for what the trial court regarded as libelous statements concerning another, attorney made in a notice of substitution of Newell for the other attorney in the settlement of the exceptions. Newell assumed properly, this court held, that the only question before the court was the settlement of the bill but at the end of the proceeding he *193 learned the court had been considering his disbarment in the following colloquy:

This was followed by the following statement of the District Court:

Of the above we stated as follows:

Likewise is the decision in the early case of Ex parte Garland, 4 Wall. 333 , 71 U.S. 333 , 18 L.Ed. 366 . There the Supreme Court, 4 Wall, at page 378, 71 U.S. at page 378 , 18 L.Ed. 366 , stated of the office of attorney:

In Ex parte Robinson, 19 Wall. 505 , 86 U.S. 505 , 22 L.Ed. 205 , the Supreme Court first repeats the above statement of Ex parte Garland and continues concerning disbarments for conduct not in the presence of the court:

This was followed by Cooke v. United States, 267 U.S. 517 , 45 S.Ct. 390 , 69 L.Ed. 767 , a case also interesting for its requirement that a different judge should entertain the disbarment proceeding. There the Court, in reversing a conviction for contempt, states inter alia at page 537 of 267 U.S., at page 395 of 45 S.Ct. that even if there be an admission of the contempt, the court must permit a showing in mitigation of the penalty to be imposed:

It was after these cases that the Supreme Court held in Johnson v. Zerbst following Frank v. Mangum, both supra, that the court is without jurisdiction to render a judgment where the litigant is denied due process or other constitutional right. We hold there was such a denial of due process and that the district court lacked jurisdiction to render the judgment of disbarment.

Reliance is placed in the brief of the appellee on Rule 11 of the Federal Rules of Civil Procedure, 28 U.S.C., under which appellee claims it had the jurisdiction so summarily to disbar appellant. The pertinent portion of that rule reads:

Nothing in this rule purports to say that it is due process to disbar a lawyer for a contempt, not committed in or near the presence of the judge trying a case, without notice of the charge or an opportunity to be heard. The rules of civil procedure are prescribed by the Supreme Court, 28 U.S.C. § 2072 . It is irrational to assume that the Supreme Court, in prescribing Rule 11, for “appropriate disciplinary action” intended to create such a jeopardy for an attorney and thereby in effect overrule its decisions cited above.

B. The Motion to Strike the Opinion of the District Court Should be Denied.

Judge Mathes filed an opinion in the bankruptcy proceeding on August 31, 1954, a month after the appeal to this court on the ground of absence of jurisdiction to order the disbarment of La- *195 vine. Appellant moves to strike it from the record below. What occurred in the court below after the date of the appeal is not within our jurisdiction to consider on such a motion. Appellant’s motion is ordered denied.

The District Court’s order of disbarment is reversed and that court ordered to set aside that order. 1

. It is suggested that the District Court consider the making of some such rule concerning disbarments as Rule I of the United States District Court for the District of Oregon, with its provisions for the filing of a complaint, service of notice and a hearing.