State ex rel. Joseph v. Mannix
| Citation | 288 P. 507,133 Or. 329 |
| Parties | STATE EX REL. v. MANNIX. [a1] JOSEPH |
| Decision Date | 27 May 1930 |
| Court | Supreme Court of Oregon |
In Banc.
Original disbarment proceeding by the State, on the relation of George W. Joseph, against Thomas Mannix.
Defendant permanently disbarred.
Arthur Clarke, of Corvallis, Arthur K. McMahan, of Albany, and A. E Reames, of Medford, for plaintiff.
Frank J. Lonergan, of Portland, for defendant.
Mr Thomas Mannix, a duly licensed member of the bar of this state, was tried by three circuit court judges, whom this court had previously appointed as referees, on a rule to show cause why he should not be removed from the roll of attorneys; the order was granted upon the petition of Mr. George W. Joseph. The charges against the defendant are extensive, and we shall mention only those upon which the referees made findings. These are: (1) That the defendant between the dates of June 28, 1921, and August 27, 1924 obtained money under false pretenses through the instrumentality of eight bank checks issued by himself at times when he knew that his accounts with the banks were insufficient to enable them to honor these checks; (2) that in the prosecution of a series of cases, to which the parties refer as the Wemme Cases, the defendant (a) repeatedly endeavored to deceive the various courts before which he appeared, (b) that these suits were not legal or just, that they did not appear so to the defendant, and that he maintained them for selfish purposes only, and (c) that his conduct in the maintenance of this litigation was rendered further improper by reason of the fact that he had been paid $7,500 for services performed in the establishment of the charity which these suits sought to destroy.
The findings of the referees were unanimous to the effect that these charges were sustained by the proof. Two of the referees recommended that the license of the defendant to practice his profession be suspended for three years' time; the third advised that the defendant's license be withdrawn forever. To the findings of the referees the defendant filed objections; he contends that the record does not warrant their conclusions.
The evidence is voluminous; we have examined it, however, with care. We shall first dispose of the charges which accuse the defendant of having obtained money under false pretenses by issuing eight bank checks at times when his credit with the banks was insufficient to enable them to honor the checks. Five of these checks, each in the sum of $10, were cashed by the defendant at an establishment known as the Basket Grocery & Delicatessen; two more, one in the sum of $200 and the other in the sum of $20, were cashed by an individual named J. J. Mazurosky. The defendant concedes that he issued these seven checks, and at the trial apparently did not seriously dispute the testimony presented by the prosecution that the banks refused to honor them because his account was insufficient to enable their payment. Witnesses testified that, when the Basket Grocery & Delicatessen Company was unable to obtain payment of the five checks cashed by it, it delivered them to one F. C. Lynch for collection. When Lynch failed to obtain results, he commenced an action upon them in August of 1928. To his complaint, which alleged these checks and several accounts assigned to him by other creditors of the defendant, the latter filed a demurrer. This demurrer had not been disposed of at the time of the hearing before the referees; but the defendant, according to his own testimony, shortly after filing the demurrer, commenced to make installment payments to Lynch upon several of the claims alleged in Lynch's complaint. Shortly before Mr. Joseph filed his charges against the defendant, the latter discovered that the five Basket Grocery & Delicatessen checks were being sought by his accuser, and thereupon hastily paid to their holder the sum of $50. He contends that this constituted a second payment of them, and testified that shortly after the dishonor of four of these checks he was advised of that fact and paid $40 in cash to the Basket Grocery & Delicatessen Company. He further testified that about a year later, when he discovered that the fifth check had also been dishonored, he paid the same company its amount. The fact that he did not obtain a return of the checks he ascribed to carelessness. The Mazurosky checks, Mr. Mannix contends, have been fully paid. He testified that, when he was advised that the $200 check had been dishonored, he promptly paid Mazurosky $200 in cash, and that still later at Mazurosky's request performed services as an attorney of the value of $200 for his brother. He testified that, when the $20 check was dishonored, he promptly paid its holder the sum of $20. Both of these checks were in the possession of Mazurosky until they became exhibits in this case.
It will be observed from the fact that the defendant testified that, after the dishonor of all seven of the above checks, the matter was called to his attention, and he thereupon paid to their holders the amount for which they were drawn, he thereby admitted that, when he issued these checks, (1) his credit at the bank was insufficient, (2) that he obtained value for the checks from those who cashed them, and (3) that he had actual notice of their dishonor by the banks. If any of these inferences are erroneous, testimony which we believe is free from contradiction supplies each of the above items. The above being the facts, the only issue to be determined is whether the defendant paid to the holder the amount for which the checks were drawn after he received notice of their dishonor. Section 1964--1 and section 1964--2, Or. L., which were in effect at the time of these transactions, provided thus:
The referees found against the defendant upon the issue of payment; we accept this finding as our own.
We come now to the eighth check, which was in the amount of $15, and which was sent to the county clerk of Yamhill county as payment of a filing charge of a complaint which instituted a suit August 27, 1924, in which Mary Mannix, a relative of the defendant, was the party plaintiff. The county's charges being only $12.50, the clerk mailed to the defendant his check for $2.50 which was promptly cashed by its recipient. The defendant admitted that Mary Mannix came to his office and consulted him before this action was instituted, that the pleading was written upon his stationery, and that his name was signed to the complaint. He denied, however (1) that the signature to the complaint was written by himself; (2) that he was the author of the $15.00 check; (3) that the indorsement on the back of the $2.50 check was in his writing; and (4) that he received this rebate. In fact, he contended that he knew nothing about these two checks until a short time before the filing of the disbarment charges. He testified that, when Mary Mannix came to his office, he referred her to his stenographer and an office associate, and that thereafter he took no interest in her piece of business. When the $15 check was dishonored and the $2.50 check was cashed, the county clerk mailed a series of three letters to the defendant, demanding payment of the dishonored check; still later, upon the clerk's motion, a copy of which was mailed to the defendant's office, the complaint was stricken from the circuit court's files on account of the nonpayment of the filing fee. Although the testimony disclosed that these letters and the above-mentioned notice were properly addressed and mailed to the defendant's office, he denied their receipt. His testimony vaguely suggests that his stenographer, a young man who has since been admitted to the bar, and who is now associated in the practice of law with the defendant, wrote the $15 check, and indorsed the defendant's signature to the $2.50 check. However, the defendant did not call this young man as a witness, nor Mary Mannix, nor the office associate to whom he claims he referred her. Neither did he produce his check stubs or other similar office records. His testimony does not account for his failure to inquire from his relative and from his office associates the outcome of a case concerning which he was consulted, beyond his assertion that in that year he was frequently absent from Portland. It is evident, however, that at approximately the time when this incident occurred the defendant was in Portland applying for fees in the first Wemme suit, which we shall later mention. The referees found that the defendant was the author of the $15 checks; a preponderance of the evidence certainly...
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