State ex rel. Nebraska State Bar Ass'n v. Gudmundsen
| Decision Date | 16 November 1944 |
| Docket Number | No. 31636.,31636. |
| Citation | 16 N.W.2d 474,145 Neb. 324 |
| Parties | STATE ex rel. NEBRASKA STATE BAR ASS'N v. GUDMUNDSEN. |
| Court | Nebraska Supreme Court |
STATE ex rel. NEBRASKA STATE BAR ASS'N
v.
GUDMUNDSEN.
No. 31636.
Supreme Court of Nebraska.
Nov. 16, 1944.
Disciplinary action and original proceeding by the State, on the relation of the Nebraska State Bar Association, against Elmer Gudmundsen, an attorney at law.
Judgment disbarring respondent.
1. In an action for disbarment of an attorney at law the presumption of innocence applies and his culpability must be established by a clear preponderance of the evidence.
2. The degree of proof in a disbarment proceeding being higher than that required to sustain a judgment in a civil action, the finding and judgment of culpability of an attorney at law in a civil action is not conclusive in a disbarment proceeding.
3. The failure to file exceptions to the report of a referee in disbarment proceedings within the time provided by the rules of this court is not jurisdictional.
4. Where exceptions have not been filed, or have not been filed within the time prescribed by the rules, this court may either consider the findings of the referee final and conclusive or may enter such order as the evidence and the law require.
Walter R. Johnson, Atty. Gen., John H. Comstock, Asst. Atty. Gen., and H. Emerson Kokjer, Deputy Atty. Gen., for complainant.
Good & Simons, of Lincoln, for respondent.
Heard before SIMMONS, C. J., and PAINE, CARTER, MESSMORE, YEAGER, CHAPPELL, and WENKE, JJ.
YEAGER, Justice.
This is a disciplinary action and an original proceeding initiated in conformity with the rules of this court against Elmer Gudmundsen, respondent, who is a duly licensed attorney at law, bringing into question, by appropriate complaint, the right of said Elmer Gudmundsen to retain his license and to continue in the practice of law.
On filing of complaint the matter was duly referred to Bern R. Coulter, Referee, for hearing, report and recommendation. A hearing was had, report made and the referee recommended some kind of disciplinary action short of disbarment.
The relator, by the attorney general, and the respondent each filed exceptions to the report. The hearing here is on the issues joined on the complaint, the evidence taken and the exceptions.
[16 N.W.2d 475]
The complaint is of great length and the misconduct therein charged pertains to the conduct of respondent in his capacity as attorney for the estate of Festus Corrothers, deceased, and in his representation as attorney of the heirs, legatees and devisees of the said Festus Corrothers. A brief summary of the charge is that he violated the canons of ethics of the Bar Association of the state of Nebraska and his duties as attorney, and was guilty of fraudulent conduct in the following respects and particulars: That he misrepresented the quantity and value of the personal property; that he misrepresented the value of the real estate, all to the detriment of the estate and the parties represented; that he falsely represented that one Lauda Zimmer and one Effie L. Smith were taking steps to establish themselves as children of Festus Corrothers, the purpose of which was to induce heirs of the estate to sell their respective interests to one George Manning for...
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