In re Egan

• Decision Date: 10 October 1908
• Citation: 117 N.W. 874,22 S.D. 355
• Parties: IN THE MATTER OF GEORGE W. EGAN.
• Court: South Dakota Supreme Court

22 S.D. 355

117 N.W. 874

IN THE MATTER OF GEORGE W. EGAN.

South Dakota Supreme Court

Original proceedings

Park Davis, Henry Robertson, Alfred B. Kittredge

Attorneys for the prosecution.

Loring E. Gaffy, Wilber S. Glass, D, J. Conway, S. H. Cochran

Attorneys for the accused.

Opinion filed October 10, 1908

CORSON, J.

This is an original proceeding instituted in this court by a committee of the bar of Minnehaha county to disbar George W. Egan, an attorney of this court.

On the 15th day of November, 1907, the accused was admitted to practice as an attorney of this court, and the usual license issued to him. At the time the application was made for his admission, objections were filed thereto on the part of the bar of Minnehaha county; but, in view of the fact that proceedings were pending in the county court of that county for the appointment of a guardian for the person and estate of Julia Ann O’Grady, and also an action was about to be commenced by the guardian of Julia Ann O’Grady in the circuit court of that county to cancel and annull certain conveyances alleged to have been made by her to the accused, and in order not to embarrass the courts before named in their decisions, this court declined at that time to enter upon a full examination of the objections filed on the part of the members of the bar, and therefore granted a license conditional, which is as follows:

“It is ordered that George W. Egan, upon taking and filing the required oath, be admitted and licensed to practice as an attorney and counselor at law in all the courts of this state, provided, however, that this order shall not preclude disbarment proceedings, based upon the conduct of said George W. Egan concerning the transfers of certain property to him by one Julia Ann O’Grady mentioned in the objections to his admission, if it shall hereafter be finally determined by a court of competent jurisdiction that such transfers should be canceled on the ground of fraudulent procurement.”

Subsequently to the making of said order the circuit court of Minnehaha county, Judge Frank B. Smith presiding in place of and at the request of the Honorable Joseph W. Jones, circuit judge of that circuit, has made and filed its decision in which it finds, in effect, that said transfers were fraudulently obtained, and entered a judgment directing the cancellation of the same, and the recovery by the guardian of the said Julia Ann O’Grady of $1,050 received on account of a United States bond held by tile said Julia Ann O’Grady and transferred to the said accused by her as a part of the fraudulent transaction so found by the court. Although the time for appealing from this judgment has not expired, and such judgment cannot be regarded as res adjudicata by this court, it was entered by a court of competent jurisdiction, and will be regarded as fulfilling the conditions prescribed by the order admitting the accused to practice as an attorney of this court. The objection therefore made by counsel for the accused to this proceeding on the ground that this court has duly adjudicated the questions involved herein are not tenable, and are therefore overruled.

Upon this application to this court in this original proceeding, this court appointed a commissioner to take the testimony in the case, and report the same to this court on the first day of the present month. That duty has been performed by the commissioner, and the case is now before us for final determination. The prosecutors, after setting out the findings and the judgment of the court in the action before referred to, tried before the Honorable Frank B. Smith, as judge sitting for, and at the request of the Honorable Joseph W. Jones, judge of the circuit court of Minnehaha county, proceed to allege:

“The said accusers, irrespective of the findings, conclusions, and judgment hereinbefore referred to, and in addition thereto, charge the said George W. Egan, with misconduct unbecoming an attorney and counselor of this court concerning the transfer of the property specifically mentioned and described in the complaint and in the findings, conclusions, and judgment in said action, as well as in the order admitting said George W. Egan to practice in all the courts of this state, and specifically that on the 9th day of October, 1907, and for some time prior thereto, the said Julia Ann O’Grady was mentally incompetent to manage, control, or dispose of her property or to transact any business in relation thereto, and that on said date, while so mentally incompetent, the said George W. Egan, well knowing her mental condition as aforesaid, and taking advantage of the same for his own purposes and benefit, did wrongfully and fraudulently influence and procure her to, and she did, without any consideration therefor, transfer to said George W. Egan all of her property hereinbefore referred to. Said accusers further charge distinct and separate from the charges hereinbefore made against said George W. Egan that, in violation of his duty as an attorney and counsellor at law both to the courts and to the said Julia Ann O’Grady, said George W. Egan did, after the said Julia Ann O’Grady had been judicially declared to be incompetent to manage her own affairs as hereinbefore stated, and after his admission to practice by this court, keep and retain and refuse to deliver the property belonging to the said Julia Ann O’Grady procured by him as hereinbefore stated to W. L. Baker, her guardian, upon demand duly made by him of said George W. Egan for said property. Wherefore, said accusers ask this court to issue proper process for the said George W. Egan to show cause why his license to practice as an attorney and counselor in all the courts of this state should not be revoked and his name stricken from the roll, or for such other order as to the court may seem just in the premises,”

which complaint is duly verified. The evidence is very voluminous, covering several hundred typewritten pages, and we shall not attempt in this opinion to do more than give a synopsis of the same.

It is disclosed by the undisputed evidence that on and for a long time prior to the 29th day of September, 1907, John O’Grady and his wife, Julia, resided on a farm which was their homestead, in Mapleton township, between six and seven miles north of the city of Sioux Falls, in Minnehaha county; that they had no children; that on the evening of September 29, 1907, said John O’Grady was killed by a shot fired from a shotgun; that the coroner and sheriff of said county, being notified of the tragedy, immediately went to the O’Grady home, where they made a hasty examination of the body of John O’Grady and the surroundings; that the coroner took the body to his undertaking rooms in the city of Sioux Falls; that, suspicions resting upon Mrs. O’Grady, the sheriff took her to Sioux Falls, and held her in custody in jail; that a coroner’s inquest was held on Tuesday or Wednesday; that the state’s attorney filed an information charging Mrs. O’Grady with the murder of her husband; that a preliminary hearing was held before a justice of the peace on Wednesday or Thursday of that week, and that the justice upon the hearing ordered her committed to jail without bail; that on Monday, September 30th, Mrs. O’Grady sent for Mr. Winsor, an attorney of Sioux Falls, who was retained by her; that Mr. Winsor appeared for her at the...