209 Mass. 200 | Mass. | 1911
This is a petition to disbar the respondent, an attorney at law. It alleges in substance that the respondent as attorney for the plaintiff, in an action entitled O’Halloran v. Boston Elevated Railway which was tried twice in the Superior Court, after a final verdict had been rendered in favor of the plaintiff, filed six witness certificates as a basis for the taxation of costs, bearing the names of seven witnesses showing attendance for thirty-three days each, the aggregate amount of which, including travel, was $372.90, which certificates were false to the knowledge of the respondent and were not made in good faith but were illegal and fraudulent; and that in making them out and instructing witnesses to sign them the respondent, acted dishonestly and committed a fraud upon the defendant and the court; and that by inadvertence counsel for the defendant did not give notice of a desire to be present at the taxation of costs, and execution issued including the above mentioned amount for witness fees; that thereafter a motion was filed to vacate the judgment on account of these fraudulent certificates, which motion was denied for lack of jurisdiction; and that the respondent paid over to the several witnesses a small part only of the amount of witness fees thus collected and fraudulently and dishonestly retained, and converted to his own use the balance thereof. The respondent filed an answer in which he denied all fraudulent or corrupt acts, or any violation of his oath of office in this regard, and averred that the witness certificates were truthful and in accordance with the facts.
He further found that whatever was done in holding witnesses for thirty-one of the days certified to, the respondent did while “ a clear and explicit agreement existed between him ” and the attorney for the Boston Elevated Railway Company “ that neither party ‘needed-to get ready’ nor ‘keep witnesses around’ until notified by the other.” Upon these facts the judge of the Superior Court found that “ the witnesses’ certificates prepared and filed by the respondent ‘ were false, and were known by the respondent to be false, and were not made in good faith, but were improper, illegal and fraudulent,’ ” and that in his conduct respecting them “ the respondent acted improperly and dishonestly and committed a fraud upon the defendant.” The respondent filed certain requests for rulings, some of which were granted and others refused. After the filing of the findings the respondent excepted to certain parts thereof and filed further requests for rulings and a motion for a new trial. These were all overruled or refused and upon the findings an order of court was entered suspending the respondent from his office of attorney for three years. The respondent excepted and appealed.
1. It is argued that there is a variance between the petition and the findings in that the latter so far as fraudulent conduct is concerned are based wholly upon the agreement between counsel in the O’Halloran case that parties should not be held for trial and that this specific matter is not alleged in the petition.
2. The request for a ruling that the questions involved had already been adjudicated in the respondent’s favor was properly refused. At the -hearing on the motion to vacate the judgment in O’Halloran v. Boston Elevated Railway the decision appears to have been made wholly upon a jurisdictional question and did not involve the issues depending upon this petition.
3. It is argued that the findings of fact made by the judge were not warranted by the evidence. The evidence was conflicting, but the witnesses were seen by the trial judge and his determinations of fact under these circumstances are not open to revision in this court. His conclusions based upon personal observation of witnesses, their voice, manner and facial expression in testifying, afford him far better opportunities for reaching
4. The motion for a new trial, after one full hearing had been had, was addressed- wholly to the discretion of the trial judge, and is not open to revision upon this record. Reeve v. Dennett, 137 Mass. 315, 318. Scannell v. Boston Elevated Railway, 208 Mass. 513.
5. The finding of facts by the judge, to which reference has already been made, was a sufficient warrant for the order of the court to the effect that the respondent was guilty of misconduct in his office of an attorney, and for his suspension for a period of three years.
6. We have examined all the other points raised and find nothing which requires further discussion, and they have not been argued.
Exceptions overruled; order affirmed.
Raymond, J.