In re Disbarment Proceedings of Newby

• Decision Date: 03 May 1906
• Docket Number: 14,320
• Citation: 107 N.W. 850,76 Neb. 482
• Parties: IN RE DISBARMENT PROCEEDINGS OF WILLIAM L. NEWBY
• Court: Nebraska Supreme Court

107 N.W. 850

76 Neb. 482

IN RE DISBARMENT PROCEEDINGS OF WILLIAM L. NEWBY

No. 14,320

Supreme Court of Nebraska

May 3, 1906

ERROR to the district court for Saline county: LESLIE G. HURD JUDGE. Judgment, as modified, affirmed.

AFFIRMED.

W. L Newby, W. G. Hastings and A. G. Wolfenbarger, for William L Newby.

Norris Brown, Attorney General, W. T. Thompson and Joshua Palmer, for the state.

OPINION

SEDGWICK, C. J.

Proceedings were begun in the district court for Saline county to disbar William L. Newby, an attorney at law practicing in that court. The complaint filed charged that an action was begun in that court to foreclose a tax lien upon certain real estate situated in that county, and in that action Charles E. Jennings, who then appeared by the records of the county to have the legal title to the real estate in question, was made defendant, the plaintiff at the time supposing that the said Jennings was living; that in fact the said Jennings was before that time deceased; that the said Jennings was a resident of Oklahoma territory some time before his decease, and died there, and an administrator of his estate was there appointed, and that William L. Newby filed a petition in intervention for one Melinda H. Smiley, alleging that the said Smiley was the owner in fee of the real estate in question; that after the decease of said Jennings the said Newby appeared before a notary public of Logan county in the territory of Oklahoma and pretended that he, the said Newby, was Charles E. Jennings, and there executed and acknowledged a deed in the name of Charles E. Jennings purporting to convey the real estate in question to the said Smiley, and "forged the name of said Charles E. Jennings to said deed," and that the said Newby, knowing that the said Jennings was deceased, appeared in the said action as the attorney of said Jennings, and also as the attorney of said Smiley; that he filed various papers in said cause to which he signed the name of said Jennings, and that the said proceedings on the part of said Newby were done by him for the purpose of deceiving the court as well as the parties to the litigation, and to make it appear that the said Smiley was the owner of the real estate in question, and that he was the authorized attorney for the said Jennings, well knowing at the time that the deed aforesaid was a forgery, and that the said Jennings was dead at the time he so appeared. The complaint recites that defendant filed an attorney's lien in said cause and signed the same as attorney for said Jennings. To this complaint Newby filed an answer in which he admitted the allegations in regard to the commencement of the tax foreclosure proceedings, and admitted that he appeared for Melinda H. Smiley and filed a petition in intervention, and acted for her therein, and filed an attorney's lien in said cause "on the 19th day of February, 1904, as the same appears of record and in the files of this court," and denied the other allegations of the complaint. The court appointed a committee of three members of the bar "to ascertain and report the facts." This committee afterwards reported to the court the following findings:

(1) We find that there is an action pending in the district court for Saline county, Nebraska, wherein Ella A. Taylor is plaintiff and Charles E. Jennings et al. are defendants, to foreclose a tax lien on lots Nos. 144 and 145 in R. S. Bentley's addition to the town of Friend, Nebraska. (2) That this respondent appeared in said action as attorney for Charles E. Jennings, defendant, and Melinda H. Smiley as intervener. That his appearance for Charles E. Jennings was without authority. (3) That Charles E. Jennings died at Lawton, Oklahoma territory, October 13, 1902, seized in fee simple of lots Nos. 144 and 145 in R. S. Bentley's addition to the town of Friend, Nebraska. (4) That at the time the respondent filed the petition of intervention in said action for Melinda H. Smiley he well knew that the deed pretending to convey to her the lots in question was not a true deed. That on the 15th day of June, 1903, the respondent appeared before one Elmer J. Garner, a duly qualified notary public in and for Logan county, Oklahoma territory, at the village of Coyle, in said county and territory, and represented himself to be Charles E. Jennings, and then and there signed and acknowledged a deed as Charles E. Jennings before said Garner as such notary public, pretending to convey lots Nos. 144 and 145 in R. S. Bentley's addition to the town of Friend, Saline county, Nebraska, to Melinda H. Smiley; and afterwards, to wit, on the 18th day of February, 1904, respondent presented said deed to Frank J. Sadilek, the register of deeds in and for Saline county, Nebraska, who afterwards recorded the same in book 47 of the deed records of Saline county, Nebraska, and on page 195 thereof; and that on the 14th day of March, 1904, said deed was in the possession of the respondent. We find that the said Melinda H. Smiley is the mother of the respondent, and is now living. We find that the respondent has been guilty of deceit to the court, and in collusion to deceive with Melinda H. Smiley.

It was, of course, unnecessary to make findings of matters admitted in the answer, or of matter shown by the files of the court in which the proceedings were pending, which were referred to and identified by the answer. Some exceptions were taken to this report of the committee, and after all objections thereto had been overruled the court entered the following order: "And on this same day this matter came on for hearing on the report of the committee heretofore filed in this case, and the court being fully advised in the premises, the court hereby approves and confirms the findings of the referees herein in all things. It is therefore considered, ordered and adjudged by the court that the said William L. Newby be debarred from all privileges as an attorney at law, and from practicing in the courts of the seventh judicial district and from the courts of the state of Nebraska, and the committee are directed to certify this order to the supreme court of the state of Nebraska." The case is in this court upon proceedings in error on the part of Newby to reverse this order of the district court.

1. The first question presented by the plaintiff in error, and the one most insisted upon and discussed, is whether disbarment proceedings based upon a charge of forgery can be sustained and disbarment ordered before conviction upon a criminal prosecution for forgery. In Morton v. Watson, 60 Neb. 672, 84 N.W. 91, which was a proceeding for disbarment, the court said:

"We do not hold that it is indispensable that a hearing of this nature should be suspended because a criminal prosecution is pending charging the person against whom a disbarment proceeding is being taken with the same facts until the criminal cause is terminated. A finding in a disbarment proceeding either adverse to or in favor of the person accused perhaps would in no way affect such criminal action; nor would a verdict of either guilty or not guilty in a criminal action be binding on a court in a disbarment proceeding wherein the same act is charged. "

This language, however, is not to be regarded as constituting a precedent binding upon the court. We recognize the authority of the case itself, and the binding force of adjudication upon the question there involved. In that case referees were appointed by the court, who reported that ...