In re McCue
| Decision Date | 22 November 1927 |
| Docket Number | 6129. |
| Citation | 261 P. 341,80 Mont. 537 |
| Parties | In re McCUE. |
| Court | Montana Supreme Court |
Disbarment proceeding by the Attorney General against T. F. McCue. Proceeding dismissed.
L. A Foot, Atty. Gen., and T. W. Choate, Asst. Atty. Gen., for appellant.
W. F O'Leary, of Great Falls, for respondent.
On July 17, 1926, by the judgment of this court, the name of T. F. McCue, an attorney theretofore duly licensed to practice law in this state, was stricken from the roll of attorneys and he was forever disbarred.
In re McCue, 77 Mont. 47, 248 P. 187.
The record on which the above-mentioned judgment was rendered shows that McCue had due notice of the proceeding for his disbarment, and appeared and answered the original complaint against him; however, an amended complaint was filed and the accused failed to answer and his default was duly entered. E. K. Cheadle, of Lewistown, a former district judge of this state, was duly appointed referee to hear the matter at Great Falls, where the accused had resided and practiced for a number of years, and, in due time, a hearing was had on the charges preferred against McCue. The accused, then absent from the state, was not represented at the hearing.
Early in April, 1927, McCue returned to Montana and, on a showing of excusable neglect and lack of notice, the above-mentioned judgment was set aside and McCue permitted to file his tendered answer to the amended complaint. The matter was reset for hearing before Judge Cheadle on issue joined on each specification contained in the amended complaint, and later the Attorney General was permitted to add thereto a fifth specification, which was duly denied by the accused.
The matter was regularly brought on for hearing on June 11, 1927, and, by stipulation, all of the testimony introduced on the first hearing was considered as given on the second hearing, supplemented by further depositions and oral testimony on behalf of both the state and the accused.
On July 11, 1927, the referee filed in this court his report of his findings of fact on each of the specifications on which testimony was introduced, his conclusions therefrom, and his recommendation that the proceeding be dismissed, as on no one of the charges made had sufficient evidence been produced to warrant the disbarment of the accused. Counsel for the accused has moved the adoption of the report; the Attorney General has moved its rejection on the ground that the findings of the referee are contrary to the law and the evidence.
Before entering upon a discussion of the testimony adduced and the findings of fact and conclusions thereon made and reported by the referee, it is necessary for us to determine and declare the position which such an officer of the court occupies toward the court, and the court's power and authority with reference to the findings of fact and the conclusions of law reported to it by the referee, when requested to reject the report of the referee and to make findings and render judgment contrary to the report and recommendation of the referee.
1. While this court has original jurisdiction of disbarment proceedings (sections 8951, 8952, and 8961, Rev. Codes 1921), for the convenience of witnesses and of the court it is customary to refer such matters to some attorney of known ability and integrity, usually residing at some distance from the scene of the alleged improper activity of the accused, for a hearing in the community in which the accused resides and the wrongful conduct is alleged to have been committed. This procedure is authorized by section 8954, Revised Codes of 1921, and its effect defined by sections 9374 to 9385, Revised Codes of 1921.
During a hearing on reference, the referee occupies substantially the position, exercises the power, and discharges the duties, of a trial judge sitting without a jury (section 9379); he must report to the court in writing, stating his findings of fact and conclusions of law separately (section 9383) in the same manner as does a judge (section 9367), and "the findings of the referee upon the issues must stand as the findings of the court, and upon filing of the findings with the clerk of the court, judgment may be entered thereon in the same manner as if the action had been tried by the court" (section 9384); they may be excepted to and reviewed in like manner as if made by the court, and when the referee is to report the facts, the findings reported have the effect of a special verdict (section 9385).
It would seem from the foregoing provisions that the people of this state, through their representatives, intended to place the findings of a referee in the same category as the findings of a trial court or the special verdict of a jury, and require the challenge to their correctness to be in the form of exceptions taken thereto, and a review thereof "in like manner as if made by the court," rather than by motion to reject the findings. The word "review," as used in this connection, means "a judicial re-examination, as of the proceedings of a lower court by a higher" (Webster's International Dictionary); "a second examination of a matter" , as on appeal (First Nat. Bank v. Heath, 58 Mont. 352, 192 P. 1108).
It is, therefore, apparent that the Legislature, in authorizing courts to refer matters, intended that the referee be vested with the dignity and authority of the court in the special instance, rather than that he occupy the position of a mere clerical agent of the court, as is the case where a notary public is commissioned to take the deposition of a witness. The reason for placing a referee in the position of a trier of facts becomes apparent when we consider that the credibility of witnesses and the weight to be given to their testimony does not depend alone upon the statements made by them; the trier of facts may also take into consideration the appearance and conduct of the witness on the stand and the manner in which he testifies, his interest or bias shown by his testimony, or his conduct and the inherent probability or improbability of his statements, and from all of these matters determine whether or not he has testified truthfully; on the cold record this cannot be done.
Independent of the foregoing provisions binding in this state, it is held in many jurisdictions, including federal courts, that the findings of such a referee, the findings of a master in chancery, the findings of a judge sitting as a jury, and the verdict of a jury in a civil case stand on the same footing; while in other jurisdictions it is held that the findings of a master in chancery analogous to those of a referee, are not entitled to the same weight as a verdict of a jury (see note to Carr v. Fair, 92 Ark. 359, 122 S.W. 659, found in 19 Ann. Cas. 908), but in the latter class of cases it is further held that where the master or referee hears evidence and observes the demeanor of the witnesses on the stand, and thus occupies a more advantageous position than does the court, additional weight should be given to the findings ( Fairbury Union, etc., Board v. Holly, 169 Ill. 9, 48 N.E. 149); and again it is held in those jurisdictions that where the findings are based upon conflicting testimony, additional weight is lent to the report by reason of the master's or referee's superior opportunity for judging the intelligence and candor of the witnesses (19 Ann. Cas. at page 913). At page 911 of the note above referred to it is said that:
"The most general expression as to the weight to be given to the master's findings of fact is that they should be sustained unless there manifestly, palpably, or clearly appears to have been error or mistake upon his part" (citing a large number of United States and state cases).
There seems, therefore, to be little divergence between the two rules; but whatever the rule elsewhere, we seem to be committed to the rule that, in hearing on disbarment proceedings, the report of the referee stands on exactly the same footing as the findings of a court or the verdict of a jury. In re Lunke, 56 Mont. 226, 182 P. 126; In re Sullivan, 57 Mont. 592, 189 P. 770; In re Griggs, 74 Mont. 373, 240 P. 820. In the Griggs Case, it is said:
In the Lunke opinion, Mr. Justice Holloway, speaking for the court, said:
"While the findings of a referee are not absolutely conclusive, they are to be given the same dignity as the special verdict of a jury or the findings of a trial court, and whenever they depend upon conflicting testimony, they will be treated as unassailable if there is any substantial evidence to sustain them."
In the Ryan Case, the syllabus prepared by the court states that "the rule that the Supreme Court will not interfere with findings of the district court based upon conflicting evidence applies in the case of findings made by a referee," although the opinion is couched in the language quoted from the Griggs Case above.
2. The conclusions of law reported by the referee must, of course if they are to be...
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