State ex rel. Nebraska State Bar Ass'n v. Gudmundsen
| Decision Date | 16 November 1944 |
| Docket Number | 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 |
Syllabus by the Court.
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.
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.
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 less than the true value; that while thus representing the estate and heirs, legatees and devisees he became attorney for George Manning and illegally conspired with him to cause the said heirs, legatees and devisees to convey their interest in the estate to Manning for less than the true value; that he failed to disclose to his clients his representation of Manning; and that by and through his conduct and in fraud of his clients he obtained for Manning by purchase at a price much below actual value the interest of certain, in fact nearly all, of the parties having an interest in the distribution of the estate.
The respondent joined issue on this complaint by a denial of the allegations thereof charging him with misconduct.
The charges against the respondent in the complaint in this disciplinary action are the same as were made against him in eleven actions in the district court for Grant county, Nebraska, as grounds for vacation and setting aside transfers of interest in the estate of Festus Corrothers, deceased, which actions were tried in that court. Decrees were therein entered setting aside and vacating the transfers as fraudulent. Appeal was taken to this court where the decrees, except as to certain particulars having no bearing here, were affirmed. Respondent was a party to those actions. He made defense thereto and appeared as a witness therein. The cases are reported as Zimmer v. Gudmundsen, 142 Neb. 260, 5 N.W.2d 707. The records made and the bills of exception in those cases were introduced in evidence and thus are before the court in this proceeding.
In the decrees in those cases the trial court found that all of the charges which were made against the respondent in the complaint which is now before the court had been sustained. On a review de novo of said actions this court in Zimmer v. Gudmundsen, supra, specifically, and in positive and unequivocal terms, sustained the findings and decrees of the district court. We shall not repeat the findings but refer only to the opinion in that case.
The relator contends that the findings and judgment of this court in the previous cases on the conduct of the respondent, which is the basis of this action, are conclusive here.
The pronouncements of this court appear to support the contention although not positively so where the finding is in a civil...
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