In re Hardy, 27400.

• Decision Date: 01 May 1940
• Docket Number: No. 27400.,27400.
• Citation: 217 Ind. 159,26 N.E.2d 921
• Parties: In re HARDY.
• Court: Indiana Supreme Court

217 Ind. 159

26 N.E.2d 921

In re HARDY.

No. 27400.

Supreme Court of Indiana.

May 1, 1940.

Proceeding in the matter of William D. Hardy, an attorney, who was ordered to show cause why his name should not be stricken from the roll of attorneys of the Supreme Court, and why such court should not take such further action and make such further orders in the matter as it should deem necessary and proper.

Rule to show cause discharged.Frank H. Hatfield, Edwin C. Henning, Winfield K. Denton, Richard Waller, Isidor Kahn, and Edward E. Meyer, all of Evansville, and Lutz, Johnson & Lutz, of Indianapolis, for appellant.

Paul F. Mason, of Rockport, for appellee.

PER CURIAM.

On October 16, 1939, the Appellate Court of Indiana filed an opinion dismissing the case of Santa Claus, Inc., et al. v. Santa Claus of Santa Claus, Inc., 22 N.E.2d 879, 880. The opinion recites: ‘The record presented to us is so impregnated with spoliation of some unknown stranger to the record while the record was in the possession of the appellants or actually mutilated and forged by the appellants as charged by the appellee that in our opinion no record importing proper verity is before us.’ It is said in the opinion that the record was altered by adding page 157, showing the filing of a bill of exceptions by the appellants, and page 717, showing that the appellants filed with the clerk a written praecipe; that on page 98 of the transcrip the date, August twenty-eighth, was changed to August twenty-ninth. It is also pointed out that, after the transcript was prepared, six pages had been inserted in the bill of exceptions containing the longhand transcript of the shorthand report of the trial, and that these pages were removed by the trial judge. These are the only changes in, or mutilations of, the record referred to in the opinion.

On March 28, 1940, the Appellate Court filed an opinion denying a rehearing in the case, in which it is said: ‘In considering this petition it is noted that the appellants do not deny the mutilation but contend only that such mutilation, if any, is immaterial. In the oral argument of this case the attorney for the appellants, W. D. Hardy, accepted full responsibility for whatever mutilation that appears in the record and stated in open court that such responsibility was his.’ 26 N.E.2d 80, 81. And, on the same day, the Appellate Court presented to this court a memorandum bearing the title and number of the case referred to, which is as follows: ‘We respectfully call the attention of the Supreme Court of this State to the mutilation of the record in this case as shown by the opinion of this court in 22 N.E.2d 879. We take this action by reason of the lack of jurisdiction in this court to deal with the matter fully and finally. On the oral argument of this case in this court attorney William D. Hardy assumed full responsibility for whatever mutilation was made and at that time he fully exonerated from blame the other attorneys appearing for the appellant.’

Upon receipt of the above memorandum, this court examined the opinion of the Appellate Court and found that the matters disclosed were sufficient to challenge the consideration of this court, and ordered that ‘on or before the 19th day of April, 1940, at 10:00 o'clock A. M., of said day, the said William D. Hardy show cause, if any he has, why his name should not be stricken from the roll of attorneys of this court, and why this court should not take such further action and make such further orders in said matter as it shall deem necessary and proper.’

Thereafter, on April 19, 1940, William D. Hardy appeared by Frank H. Hatfield, Edwin C. Henning, Winfield K. Denton, Richard Waller, Isidor Kahn, and Edward E. Meyer, reputable members of the bar of Vanderburgh County and of the bar of this court, and filed his verified response and answer, expressly and categorically denying that he made any changes or alterationsin the record in question, except that he prepared two pages which he presented to the clerk of the trial court with the request that they be substituted for two pages which the clerk had prepared as part of the record, and which the clerk did personally insert in such record. There is a prayer that he be adjudged free from any wrongful act, and for such other relief as may be considered proper.

For the purpose of ascertaining the facts, we have carefully examined the record and pleadings on file in the Appellate Court, and the response and the affidavits and exhibits attached thereto. We have caused the deposition of Marguerite Canary, the deputy clerk who prepared the transcript, to be taken, we have caused the alleged erasure and changes in the transcript to be examined by the expert in the laboratory of the Indiana State Police Department, and we have caused all of the attorneys of record in the case to appear before the bar of this court and testify as to the facts within their knowledge.

The record as filed in the Appellate Court is typed upon ruled and line-numbered transcript paper. Pages 157 and 717 are upon paper with unruled margins. These two pages are clearly and obviously different from the other paper in the record. The transcript was filed in the office of the Clerk of the Appellate Court on May 8, 1937. On November 16, 1937, the appellee filed a verified petition for a writ of certiorari in which it is alleged that the transcript is incomplete and incorrect in eleven particulars. Most of the specifications deal with small matters of inadvertent omission by the clerk. We are concerned only with the specification that page 157, showing the filing of defendants' bill of exceptions, ‘has been wrongfully, erroneously and apparently by design, added to this Transcript, although it does not appear of record in the Martin Circuit Court of Indiana, either in the Reporter's minutes concerning the trial of this cause, the original papers therein, the court's minutes, or civil order book entries'; the specification that page 717, purporting to show a praecipe directing the preparation of a transcript by the clerk, ‘has been wrongfully, erroneously and apparently by design, added to this Transcript, although it does not appear of record in the Martin Circuit Court of Indiana, either in the original papers therein, the Reporter's minutes concerning the trial of this cause, the court's minutes, or civil order book entries'; and the specification that on page 98 of the transcript the word ‘twenty-eighth’ has been changed and altered to read ‘twenty-ninth.’

At the time of the filing of the petition for certiorari, certain affidavits were filed supporting it. One purported to be the affidavit of James G. Canary, Clerk of the Martin Circuit Court. In this it is recited ‘that he prepared and signed’ the transcript; that he has examined the transcript and the verified petition for certiorari, and that the specifications therein are true so far as is disclosed by the records. ‘That pages 157 and 717 of said Transcript and each of them were not a part of said Transcript at the time it was signed by him, nor at the time it was delivered to Appellants counsel as hereinafter stated and that he did not prepare either of said purported order book entries on said pages, his certificate to said transcript notwithstanding, nor has he had any manuscript paper of the kind and character on which said pages 157 and 717 are written in his said office at any time, for the purpose of preparation of Transcripts. That said affiant, at the time of signing said Transcript, did not know that either of said pages 157 and 717 had been added thereto or were contained therein.’ This affidavit was sworn to before Fabius Gwin, as Notary Public, on the 15th day of November, 1937. It now appears beyond all controversy, and is admitted by counsel for the appellee, who prepared the affidavit and caused it to be signed, that, although it appears to be the affidavit of James G. Canary, it was signed with his name by Marguerite Canary, the deputy clerk; that James G. Canary had no knowledge of the making of the affidavit, and that at the time it was made Marguerite Canary had no knowledge of the fact that James G. Canary was cognizant of, and had approved, the substitution of the new pages 157 and 717 in lieu of the original pages 157 and 158 in the transcript. There is also an affidavit of the Honorable Fabius Gwin, who presided at the trial, in which he states that, after the transcript prepared for the appeal had ‘been signed by this affiant and the Court Roporter at the trial of said cause,’ it was delivered to Julian C. Ryer; that when the transcript was returned it was found that six pages of typewritten matter, purporting to be a portion of the bill of exceptions or the court reporter's record of the proceedings at the trial, ‘had been wrongfully, erroneously and apparently by design, added to said Transcript,’ and that he as judge removed those pages from the transcript. There is also and affidavit of the Honorable Frank E. Gilkison, the regular Judge of the Martin Circuit Court, concerning the date on page 98 of the transcript, to the effect that the transaction involved occurred upon the twenty-eighth of August, 1936, and not the twenty-ninth.

On the filing of this petition for certiorari, the appellants were granted time to file a response thereto, which was filed on November 26, 1937. This response is signed by Julian C. Ryer, of Chicago, Illinois, a member of the Illinois bar, and William D. Hardy, as attorneys for appellants, and is accompanied by an affidavit of William D. Hardy. It appears from this affidavit that William D. Hardy was not retained as an attorney for the appellants until after the trial and judgment in the court below, and that he is not familiar with the proceedings prior to that time, but that he was retained for the purposes of the appeal and to make up the record for appeal; that when the transcript was delivered to appellants' counsel it...