*1 IN EE OE JULIUS E. DIESEN 297- DISBAEMENT IN RE JULIUS E. DIESEN.1 DISBARMENT OF 25,989.

No. September 30, 1927. conviction, permitted Member of bar to show that of misdemeanor not in- did turpitude. volve moral 1. Since in our disbarment a distinction is made between statute misdemeanors, lawyer against pro- conviction for a whom disbarment ceeding brought opportunity can, is prove, should have if he charged turpitude offense did not moral involve and to show extenuat-

ing [Reporter] circumstances. violating Plea of for indictment federal income tax law involved turpitude.

moral attorney pleaded 2. Record which showed on its face that against federal charging wilful, court to count in indictment him un- attempt lawful and tax, fraudulent to defeat federal income which misdemeanor, is a turpitude would indicate moral [Re- involved. porter] Proceeding permit proof extenuating remanded to matters defense. fully Matter remanded to referee to hear on his de- extenuating findings

fensive or matters and thereon. [Re- porter] January 6, 1928. turpitude requires discipline respondent. Moral of offense relating 4. The attorney to the conviction of an at attempt law of an to evade the federal income tax shows the con- involving viction turpitude, of misdemeanor and calls for discipline. [By the court] Attorney Client, New; 6 J.C. 586 n. 23 6 C. J. n. 10 New. Proceeding disbarment of E. Julius Diesen. The matter was referred to Honorable Julius Haycraft, judge the seventeenth

1 Reported in 215 N. W. N. 217 W. 356. Respondent suspended facts. reported who district,

judicial years. for three of law examiners. Clay Johnson, state board W. Larson, Green, A. John E. Thioing

O. J. L. *2 opinion the was filed: September 30, 1927, following On Curiam. Per of a mis- respondent’s conviction upon is based The application moral turpitude. involving demeanor of by referee certifies reason incomplete. The is The record by not was had. hearing the stipulation an attached certain mat- hearing had, if a were prove, to offered stipulation the inclusive, to paragraphs as the stipulation in designated ters to tending in alleged answer, prove matters substantially being was was not committed of which he misdemeanor the convicted that moral the court should find circumstances that under such matters in miti- and that there were such involved, was turpitude or punishment disbarment bear the might upon avoid as gation to which offer subject discipline,- peti- be to the should No being any as not admissible for object purpose.. tioner would testimony stipulation and no introduced. The made ruling was the to one in an indictment in federal guilty showed a count wilfully, fraudulently him with and charging unlawfully, court the attempting imposed by’the to defeat and evade act con- charged known as the of 1921. offense gress revenue act The was a misdemeanor. face,

On the the record would indicate that moral was turpitude lawyer, having- is difficult to conceive how a And it involved. lawyers other and experience ability, to consult with opportunity if of the facts contained the offer of some plead should is the opinion that, true. The court since our dis- are proof made a distinction is conviction for mis- statute barment between lawyer sought the to disbarred should have the demeanors, oppor- can, if that the offense committed he was under tunity proving, involving moral turpitude; not and full oppor- also DIESEN JULIUS OP IN KB DISBARMENT extenuating matters which him to offer afforded tunity should there should he question whether on may this consider court discipline. disbarment referee the matter is remitted

For the reason extenuating defensive or alleged respondent fully upon hear and as adduce refute petitioner matters such evidence of fact same, findings said to make as referee directed. originally January

On filed: 6, 1928, following opinion Per Curiam. federal court, respondent, Diesen, Indicted Julius E. an law in duly state, pleaded admitted this attorney having wilfully fraudulently attempted defeat evade imposed by by the United States deducting as ex- penses from his income part when of said sum had been As a paid. result such conviction the board law examiners in- stituted this proceeding to disbar *3 1923,

G. S. 5697, provides that this court § remove or sus- pend an attorney, “(A) Upon being his convicted of a felony, or of a misdemeanor involving turpitude; in either of which cases the record of conviction shall be conclusive evidence.” The charge to respondent which pleaded guilty and was sentenced pay a fine of $2,500 and serve ten in months county jail the was a mis- demeanor, 40 St. c. 336, 63, 1209, as by amended 42 St. 268, § c. 136, 253, punishment the up § fine being a of $10,000, or im- prisonment for one year, both.

The connected with the act and plea the as found by Hay Honorable Julius E. appointed referee herein to hear craft/ the evidence and the in facts, are substance: a number of represented persons pressing claims losses growing fire of the great railroads out against conflagra- ov,erthe northeastern of passed part tions which the state October In 1922 collections were being made 12, upon these claims, large in net income to resulting a expenses The in- return 1923, at the time the March On great. also were curred filed the United to be with 1922 was year the tax for income of the of this legislature member of the was a respondent collector, States mentioned he before the date The weekend in session. then state collect so as to make county to data in Carlton home to his went of above referred to $1,500 the item to how and as return; the are: condensed, findings, the therein, figured C. home of one John Johnson went to the respondent That for services against respondent a charge him to make with arranged $5,000, a admitting the fire claims with in connection rendered from respondent due leaving a balance $500, thereon credit ; to Johnson paid has ever been which $1,500, part Johnson a govern- Johnson to make return the advised respondent that $1,500 income, him of this as a taxable by showing receipt ment him sign it, induced took return, with a blank Johnson presented senator, or as state filled the same public notary as oath the $1,500, computed tax, gave by Johnson receipt showing at Paul, collector of internal revenue St. to the individual check with that then him; prepared return filed Johnson’s return, therein as deducting part his own and filed one-quarter on $1,500,paying balance; tax said expenses instalment of quarterly next the tax became due before the upon by own volition and without called being of his respondent, anyone authority, the income bureau or cor- anyone adding $1,500 said sum of to his income and by return rected the tax, including penalty costs, amounting to over paid $700 Johnson, by adding in behalf of since paid more than the amount $50,000 to his net income it exceeded and took a higher on entered arraigned that when the indictment he rate; attorney, seeking mitigate punishment, that his guilty; the deduction was a mistake and not an intentional Honorable John B. wrong, whereupon presiding judge, Sanborn, *4 him and informed and his client that if such were the interrupted that fact, plea might withdrawn, the court would not receive guilty was not respondent if claimed be not guilty plea States district attorney had said John C. United that guilty; DIESEN OP JULIUS E. IN RE DISBARMENT had advised time, in court at was Johnson to facts inconsistent testify was ready Johnson attorneys that his entered after such innocence; plea that the respondent’s with attorneys and was adhered with consultations information and imposed. the sentence to, and connection perjury

In was another count the indictment attempt of an upon guilty but $4,500 item; plea with the count was nolled. perjury evade he had the county attorney; had held the office attorneys; and able the attitude of the court experienced

counsel if he were not an intentional him, was made clear of his attempt payment proper fraudulent evade might be withdrawn and should and a trial be had. In that is idle urge situation it that it was but a technical and unintentional involved in mistake the misdemeanor of which he was convicted. The circumstances of the offense and the situation under which respondent entered and his plea allowed of guilty to stand permit escape from the conclusion that the misdemeanor imposed which sentence was upon such plea was one involving turpitude. It quite would have been a different situation if respondent had simply deducted the item in the belief that owed that sum past services, even though he had not paid Johnson when the return was made. But the transaction with Johnson of his filing return and payment of cannot be explained upon any theory of mistake either of law or fact. been in

Respondent has active for 20 years. He has had community the confidence of his and has served the public various positions of professional trust. No misconduct is laid at his door. Up to the time attempted of this offense he good had borne a char- acter. While all this is no excuse for his dereliction but rather aggravation thereof, we reach the conclusion that respondent should be disciplined by than suspension for a period years three rather be permanently disbarred. Diesen,

It is ordered therefore Julius respondent, having been convicted of a misdemeanor involving moral turpitude, be sus-

302 of three the period for in this state lawof from pended years. accordingly. be entered judgment

Let A. PORTER.1 LYNN v. J. L. VOUGHT January 6, 1928. 26,166. No. writing secondary plaintiff of contents evidence Verdict for sustained — produce. without notice The record discloses: and a consideration

(1) the verdict evidence to sustain Sufficient alleged contract. for writing sup- of a (2) received as to the contents Evidence serving party a notice possession adverse without posedly of the in the fairly appear at the trial that it could made to produce where it is produced notice had been served. if such have been not file, complaint. plaintiff permitting an amended (3) error No Evidence, 22 1062 n. 90. C. J. Administrators, 24 C. J. 840 n. 61. Executors Cyc. p. Purchaser, 1357 n. 46. Vendor and estate of Reierson, appealed of the Ole as executor Defendant, for county, Peterson, the district court Mower J. order of from an for Af- judgment motion a new trial. his alternative denying firmed. wood, Hughes Alderson, appel- Harden and Gather &

G. W. W. lant.

F. and R. Dunnette, G. Basse A. C. J. Wilson, defendant’s alternative motion denying an order

Appeal trial. The facts are or a new non obstante judgment Minn. 209 N. W. 642. Porter, v. Vought 1 Reported in 217 N. W.