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Supreme Court of Illinois on October 13,, was badly in debt; that the $500 check to 1915. He denied many of the charges in the Kramer was for the cash payment to Schmidt. two counts, and sought to explain some other Kramer got in touch with Schmidt over the matters by the evidence. The second count telephone, and requested him to go to reis proved as charged. The first and second spondent's office to complete the deal. In the loans of $500 were each repaid, each within a meantime Swenson had decided to purchase month after the same was loaned, together another drug store, and when Schmidt apwith $50 and $100, respectively, as profit or peared at respondent's office he was informinterest. There was paid by respondent $200 ed that the deal was off. Respondent asked to Brunken on the third note, and then Brun-| for the $500 back from Kramer, who insisted ken hired an attorney, who by labored ef- that Swenson should be held to his agree. forts secured two other payments of $250 and ment. Respondent then gave a $1,500 check $100 in money, and later a watch for $100, to Kramer, to be delivered to Swenson when furniture for $150, and a note for the bal- | Kramer deposited his $500 and a Mr. Scharf ance, upon which judgment was taken. The deposited an expected $1,000. Kramer innote was finally fully paid, after much delay dorsed the check without recourse and delivand repeated duns; one check of respondentered it to Swenson before the deposits were being returned unpaid for want of sufficient made, and the check was not paid for want funds in the bank. It was not finally all paid of sufficient funds; respondent only having until resort was had to the Bar Association $1.33 in the bank. Thereafter respondent by the charges aforesaid. The relation of gave his check to Swenson's attorney for attorney and client between Brunken and $750, payment of which was also refused by respondent was neither charged nor proved the bank for want of sufficient funds. as to the second count.

Respondent's explanation regarding his The facts established under the first count bank account is that it was nearly the are that in 1922 II. L. Swenson, a drug clerk, amount of the check when given, and would being desirous of purchasing a drug store have been that amount if the bank had not for himself, talked with Lee Kramer, a friend charged against his account some other and former schoolmate and roommate, who checks he had deposited, and with which the sold drug supplies, about buying a drug store. bank refused to credit him because the makAfter considering several places, Swenson ers of the checks had not sufficient funds in was inclined to consider the purchase of the the bank. After complaint had been made Schmidt drug store, which had been original- against respondent to the Chicago Bar Assoly offered for $18,000, but which Kramer lat- ciation he paid a part of the amount, and er told Swenson could be purchased for $16,- later, since the filing of the information 500, of which sum $1,500 was to be paid in against him, has paid all the amount due cash. On one occasion respondent had driv- Swenson. There is some question as to en Swenson and Kramer in his automobile whether or not respondent and Kramer were to look at the store. Respondent had been legally obligated to return the $1,500 to employed previously as Kramer's attorney, Swenson after he had changed his mind. and also for Swenson's employers, but had Nevertheless, respondent promised to return never acted as Swenson's attorney. Swen- it, and was very slow in doing so, evidently son stated that he expected respondent to because he was very hard pressed for money. look after the legal part of the transaction, The evidence does not show that he was to but no fee was agreed on, and nothing was receive any part of the $1,000 commission, said regarding the employment of respond- and that he was not to receive anything from ent as Swenson's attorney. Kramer succeed- Swenson for his services as attorney. The ed in getting Schmidt to agree to sell the proof does not show that he was guilty of drug store for $15,500, $500 of which was to any criminal offense. It does show that he be paid in cash. Ile and respondent then and Kramer did not tell Swenson that a went to Swenson's home," and Kramer told profit of $1,000 was to be made on the transhim, in the presence of respondent, that the action for Kramer. On the other hand, reprice of the store was $ 16,500, $1,500 of spondent, while he heard Kramer state to which must be paid in cash. Swenson then Swenson that the cash payment was to be obtained a cashier's check for $1,500. There $1.500, instead of $500, yet made no repreis a dispute as to whether the check was sentations to Swenson about it. delivered to Kramer or respondent. The [1] The facts proved, and which support proof does show that respondent gave Swen- the first additional count, are that during son a receipt for the money, and that the the first half of the year 1922 Louis A. Encheck was deposited in respondent's bank dres was accustomed to call about three to his account, and on the same day he drew times a week to visit respondent's sister. a check for $500, payable to Kramer. Re- Respondent frequently took Endres home in spondent's explanation of the transaction is his car after he had finished his call. On that $1,000 of the payment was to be Kram- one of these occasions respondent and Ener's commission for making the sale and that dres were in the front seat of the automobile, Kramer was to loan him the $1,000, as he and one Stamps was in the rear seat. Re

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(148 N.E.)
spondent told Endres that he was in need of said deposits made. It was presented by
$1,000, and Endres said that he had only respondent on the hearing before the commis-
about $850, and would loan that amount to sioner, together with the bank book.
respondent. Endres was a clerk in a storage spondent admits that his possession of this
house, earning a salary of $40 a week. He pa per was an oversight on the part of En-
had previously been in business and had sold dres.
it. He was collecting the payments from the The commissioner very properly found that
sale of his business, and his savings from his the relation of attorney and client in this
work, together with the payments that he transaction did not exist between respond-
bad received from the sale of his business, ent and Endres. She also found that the
amounted to $857, which was deposited in his weight of the evidence is to the effect that
savings account in a bank. The next day the transaction amounted to a loan from one
after this conversation, respondent went to friend to another. It is true that respondent
the place where Endres worked, and Endres is supported in his testimony by Stamps as
gave him a withdrawal order for $850. Re- to the character of the transaction concern-
spondent signed and gave Endres this paper: ing the three amounts, of $50 each, placed in
"Feb. 17, 1922. Received of Louis Endres the hands of respondent by Endres. It is
$850. Due on demand.” Respondent took also true that Endres is entirely supported
the withdrawal order and obtained the $850. by the very strong circumstance that re-

According to the testimony of Endres, at a spondent was in possession of his bank book,
later time, about April, 1922, as a matter of in which was placed the paper evidencing
convenience, his place of work being a con- | the receipt of the $850. Respondent's testi-
siderable distance from his bank, he asked mony does not satisfactorily account for his
respondent to deposit $50 in his savings ac- possession of this bank book, although it is
count for him. Respondent said that he would. supported by Stamps. We cannot agree with
Endres then gave him his bank book and the the commissioner that there is no evidence
$50 to deposit for him. Thereafter, on two to show that respondent "fraudulently con-
other occasions, he gave respondent $50 for verted" the three sums of $.50 each to his
deposit, with a like request that he deposit own use. The evidence points strongly that
said sums in the Greenebaum Sons Bank & way, notwithstanding the testimony of re-
Trust Company, where his deposit account spondent and Stamps.
was. None of these sums were ever deposit Respondent's action in this matter de.
ed by respondent, and he did not return to serves very severe censure. He has mani-
Endres the bank book until the hearing be- fested no disposition to pay back the amount
fore the commissioner, although Endres made due Endres, but puts himself in the attitude
repeated demands on him for it. After many of positively refusing to pay it; his only er.
requests for his bank book, Endres went to cuse for his unwillingness being the fact that
the bank and found that respondent had not this complaint was made to the Chicago Bar
made the deposits, amounting to $150, that Association. Respondent seems to ascribe this
he had requested him to: make. Nothing proceeding as evidence of malice on the part
further was done by Endres about the pay- of Endres, inspired by the fact that the close
ment of the $8.50, or the $150, for several relations between him and the respondent's
months, except that he often asked respond- sister had been broken off. It seems to us
ent for the bank book and that he deposit the conduct of respondent in securing the
the $150 in the bank. Endres finally had a loan might just as aptly be interpreted as an
meeting with him and demanded the pay attempt by him to take advantage of Endres
ment of the $850 and the $150. Respondent | by reason of such relations with his sister.
then made out two judgment notes, for $150 His refusal to pay Endres on the ground
and $850, dated February 22, 1922 (the day aforesaid is simply inexcusable. The whole
respondent had obtained $850 from Endres), transaction on the part of respondent is al.
and gave these notes to him. Endres took together inconsistent with common honesty
the notes, but thereafter wrote to respond- and decency as between one citizen and an-
ent that he did not intend to accept them in other, and is entirely inconsistent with the
settlement of the account.

conduct expected from an attorney and coun-
The testimony of respondent, which is sup-selor at law, who holds the license of this
ported by the testimony of Stamps, is that court to practice his profession.
Endres was to loan him $1,000, and that the [2] It is the general rule that an attorney
giving to him of the $50 on three different at law will not be disbarred for misconduct
occasions was to make up the $1,000 after in- not in his professional capacity. Neverthe-
cluding the $850 previously loaned to him. less there are exceptions to this rule, and
Respondent has never repaid any of the $1,- this court has held that there may be mis-
000. It also appears that the paper sign- conduct of an attorney in his private capac-
ed by respondent acknowledging receipt of ity so gross as to require his disbarment.
the $850, which he had given Endres, was People v. Appleton, 105 Ill. 474, 44 Am. Rep.
in the bank book which Endres turned over | 812.
to him for the purpose of having the afore It is charged in the second additional

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count that respondent acted as the attorney , ally wrote him that Mulligan and Cohen & for one Mulligan in the purchase of a drug Garvey had taken care of all the other oblistore. Mulligan agreed, as a part of the gations of the store, with the exception of the purchase price, to assume $1,100 of the in-ones placed in his hands. Thereafter comdebtedness existing against the drug store plaint was made by Mulligan to the Chicago at the time of his purchase. It was after- Bar Association. Respondent, in reply to a wards learned that there was an addition- letter from the grievance committee of the al indebtedness of $512.83, and the sellers Bar Association, stated that he would pay the deposited in the hands of respondent this money upon a satisfactory showing that the sum of money for the payment of that in- | $1,100 had been paid. It was not the contendebtedness. Respondent executed a receipt tion of either Cohen or Garvey, or of any for this money. He was thereafter given one else, except respondent, that there was a list of the additional creditors, but re- any understanding that the money was placed fused to pay the sums due these creditors, in his hands and to be paid out only when except as to one amount of $122.81. Mulli- Mulligan paid the $1,100. gan made repeated demands upon respondent After the complaint was filed with the Bar to pay the other claims, and sent him a list Association, respondent refused to pay any of the creditors and the amount due each. of the money until the matter was disposed Respondent refused to pay these creditors, of by that association. The evidence in the and by reason thereof is guilty of malfeas- record shows clearly that the payment by ance in his office as attorney at law. Mulligan of the $1,100 had nothing to do

The evidence as to the second additional with the payment of the other accounts by recount shows that, in the negotiations of Mul- spondent. Respondent was acting as an atligan with Cohen & Garvey, respondent rep- torney at law for Mulligan as well as for the resented Mulligan as his attorney, and that other parties. All of respondent's excuses he prepared the memorandum of agreement. were met by his client. A list of the crediFrom the evidence it appears that Mulligan tors was furnished him, and the attorneys was to pay all the debts, which at that time for Mulligan stated that all the indebtedness were determined to be $1,100. Later, when had been paid, except such as the money in the debts were shown to exceed that amount respondent's hands was to pay. Respondent by $512.83, Cohen & Garvey paid that sum to was acting in a fiduciary matter, and he respondent, who signed a paper reciting should either have paid out the money as that the total liabilities of the Irving-Kim- directed, or have terminated his connection ball pharmacy amounted to $1,612.83—$512.- with the matter and returned the money to 83 more than Mulligan had assumed and those from whom he received it. He has not agreed to pay. Respondent agreed in the only refused to pay the money as he agreed instrument signed by him that he would use to do, but has failed to return it. His conthe $512.83 to pay the liabilities, and product in this regard has been not only defiant, cure from Mulligan a release and discharge but he has acted without regard to his oath for all claims and demands by reason of such of office and his duty as attorney and counadditional liabilities. This payment to re- selor at law. spondent was made about a week or 10 days Such conduct of respondent as has been after the purchase of the store. Respondent disclosed by the evidence under the first and testified that this money was to be expended second additional counts cannot be tolerated by him after Mulligan had paid the $1,100 hy this court, whose duty it is to guard the of bills assumed by him. No such conditions public in its relations with the members of are shown in the receipt or statement that the legal profession. Attorneys and counsel. he signed. Out of the money received by ors at law in this state bear the distinction him respondent has only paid one creditor of being members of the only profession of the store the sum of $122.81. He has whose members are required to take and subfailed to pay any of the other creditors, or scribe an oath to support the state and fedreturn the balance of the money so received. eral Constitutions, and in addition thereto Mulligan made repeated demands upon him an oath that they will, to the best of their to pay the balance to the creditors, or to de- ability, discharge the duties of the office of liver the money to Mulligan, so he could do it. attorneys and counselors at law. Whoever

Respondent sought to excuse this pay- willfully and deliberately violates his consti. ment of money on the ground that a list of tutional oath by depriving or attempting to creditors had not been furnished him. A deprive any citizen of this state of any right list was thereafter sent to him, showing the guaranteed by the Bill of Rights of our state names of the creditors and the amount due Constitution or by the federal Constitution, each one of them. Respondent also insisted and whoever, as such attorney and counselor that the money was not to be expended by at law, willfully and deliberately violates his bim until the $1,100 had been paid by Mulli- oath as attorney, by refusing to discharge his gan. Mulligan employed a firm of lawyers to duty to any client in relation to trust funds collect the balance from respondent, or com- placed in his hands, and deliberately refuses pel him to pay it to the creditors. The law- to turn over to or pay out for his client trust yers made repeated demands on him, and fin- funds received by him for the payment of

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(148 N.E.) claims, or willfully and deliberately swin-, Vannier, wife of plaintiff in error (hereinafter dles another, or converts to his own use funds called defendant), defendant was tried beintrusted to him for safe-keeping or for de-fore the court, a jury having been waived, posit in bank, is unworthy of having his found guilty, and sentenced to pay the sum name upon the roll of attorneys and counsel- of $25 weekly to the clerk of the court for ors of this court.

the use of defendant's children, upon the The findings and recommendations of the second count of the information, which chargcommissioner will be sustained as to the orig-ed that defendant, "on the 26th day of Febinal counts. The objections of the relator ruary, A. D. 1924, at the city of Chicago, to the findings and recommendations of the being then and there the father of Raoul, commissioner as to the first and second addi- Jr., Marguerite, and Lois Vannier, then and tional counts will be sustained.

there minor children under the age of 18 We find from the evidence that respond-years, did then and there, without lawful exent is guilty as charged in the first and sec- cuse, neglect and refuse to maintain and proond additional counts, and that the rule vide for said children, said children then and should be made absolute, and the name of re. there being in necessitous circumstances.” spondent stricken from the rolls.

The judgment of the municipal court having Rule made absolute.

been affirmed upon writ of error by the Appellate Court for the First District, the rec

ord is now before this court for review upon (317 Ill. 521)

writ of error. PEOPLE v. VANNIER. (No. 16626.) [1] It is contended by defendant that the (Supreme Court of Illinois. June 18, 1925.) court erred in not quashing the information,

because it was filed by a person other than 1. Indictment and information m39–Informa- the state's attorney. Section 27 of the act tion in municipal court may be filed by per-creating the municipal court (Smith-Hurd son other than state's attorney after examl. Rev. st. 1923, c. 37, § 382) provides that all nation by judge.

criminal cases in which the punishment is Information charging neglect and refusal to maintain and provide for minor children in by fine or imprisonment other than in the

penitentiary may be prosecuted by informanecessitous circumstances could be filed in municipal court by person other than state's at- tion of the Attorney General, or state's attorney, after examination of information by one torney, or some other person, but, before an of judges, under Municipal Court Act, § 27 information, is filed by any person other (Smith-Hurd Rey, St. 1923, c. 37, § 382). than the Attorney General or state's attorney.

one of the judges shall examine the infor2. Criminal law w 1044 - Defects not raised

mation, and may examine the person present. by written motion to quash not considered.

ing the same, and require other evidence and Alleged defects in information, which were not raised by written motion to quash in mu- satisfy himself that there is probable cause nicipal court, could not be considered on appeal. for filing the same, and so indorse the same.

This statutory method of procedure was fol3. Parent and child m 17(6)-Evidence insuf- lowed in the present case, and the court did ficient to show beyond reasonable doubt that not err in refusing to quash the information accused refused to provide for minor children on that ground. People v. Horan, 293 Ill. in necessitous circumstances.

314, 127 N. E. 673, In prosecution of father for neglect and

[2] It is is claimed by defendant that the refusal to maintain and provide for minor children in necessitous circumstances, evidence information is defective in other respects, held insufficient to show guilt beyond reasonable but such questions, not having been raised doubt.

by defendant's written motion to quash the

information in the municipal court, cannot be Error to Appellate Court, First District,

here considered.
on Error to Municipal Court of Chicago;
Joseph Burke, Judge.

[3] It is contended by defendant that the

evidence fails to show defendant's guilt beRaoul Vannier was convicted of neglect yond a reasonable doubt. The information and refusal to provide for three minor chil- specifically charged the defendant with the dren in necessitous circumstances, and he abandonment of Raoul, Jr., Marguerite, and appeals. Reversed and remanded.

Lois Vannier. The evidence entirely fails Raoul Vannier, in pro. per.

to show that defendant ever had a child Oscar E. Carlstrom, Atty. Gen., Robert E. called by any one of those three names; Crowe, State's Atty., and James B. Searcy, none of these names being mentioned by any of Springfield (Edward E. Wilson and Clar- witness. The municipal court of Chicago ence E. Nelson, both of Chicago, of counsel), has jurisdiction only over those criminal of

fenses which occur within the city of Chica

go. There is no proof in the record that withHEARD, J.

In the municipal court of in 18 months prior to the filing of the inforChicago, upon an information filed by Fayl mation any one of the three named children

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexen

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for the People.

was at any time in the city of Chicago, or, municipal corporation. Judgment for plain. that defendant in said city ever refused or tiff was affirmed by the Appellate Court, neglected to maintain and provide for them. which granted certificate of importance, and The evidence shows that defendant and Fay defendant appeals. Reversed. Vannier were married in 1917, and that as See, also, 229 Ill. App. 354. a result of such marriage three children were

Hector A. Brouillet, of Chicago (Le Roy born. The undisputed evidence shows that on the 4th day of June, 1923, defendant's Millner, Francis L. Brinkman, and Morton s. wife left his home in Oak Park, taking with Cressy, all of Chicago, of counsel), for appel

lant. her their three children, and that thereafter, although defendant requested at different

John G. Riordan, of Chicago, for appellee. times to see the children, he was not allowed to do so. He testified that at all times

THOMPSON, J. The Appellate Court for since his marriage he has been ready, able, the First District having granted a certificate and willing to support his family in his own

of importance, this appeal is prosecuted to home. There is no proof in the record that review its judgment, affirming a judgment of at any time the children were in destitute or

the superior court in favor of August Mindenecessitous circumstances, the only evidence man, administrator of the estate of Rog upon that subject being a statement in a let. Mindeman, deceased, in his action against ter written by defendant's attorney to de- the Sanitary District of Chicago, arising out fendant's wife containing the following state of the accidental drowning of Roy Mindement:

man, a child 5 years and 10 months old, in

the canal of appellant. "Mr. Vannier says the two eldest children are apparently in need of winter clothing, and he is

The Sanitary District of Chicago is a mudisposed to supply them as far as his means nicipal corporation organized under the laws will permit at this time. Kindly make out a of this state. In order to take care of the list of their most urgent needs and let us have sewage of that part of the city of Chicago it, and the articles will be purchased and de- south of Eighty-Seventh street, and to prolivered to you. It may be necessary to let him vide a navigable waterway from the Calumet have the children for a few hours in order to river to the main channel in the Sag, appellee get them."

had excavated and constructed a canal 60 Mrs. Vannier admitted the receipt of the feet wide and 25 feet deep from the main letter, but made no reply thereto, for the rea

channel eastward to the western limits of the son, as she stated, that most of their needs city of Blue Island. On each side of the had been supplied. The evidence in this case channel, extending 5 or 6 feet above the falls far short of showing defendant's guilt, water, is a perpendicular concrete wall with beyond a reasonable doubt, of the crime a flat top 4 feet wide. On both sides of the charged in the information. People v. Hon canal the banks rise with a gradual inciine aker, 281 Ill. 295, 117 N. E. 997.

from the top of the concrete wall 10 or 12 The judgment is reversed, and the cause

feet to the level of the surrounding territory. remanded to the municipal court of Chicago. Beyond the top of this incline is the spoil Reversed and remanded,

bank,

From the photographs in the record it appears that there is a strip of level ground, several feet in width, between the foot of the spoil bank and the top of the

canal bank. (317 III, 529)

The right of way of the saniMINDEMAN V. SANITARY DIST. OF CHI. tary district is several hundred feet wide at CAGO. (No. 16606.)

the point in question, and is used principally for agricultural purposes.

The nearest (Supreme Court of Illinois. June 18, 1925.) public highway to the point in question is the Negligence 39—Canal of sanitary district junction of Jolin street, which runs parallel held not attractive nuisance,

with the right of way, and Ogden avenue, Where water in canal of sanitary district, which runs south from the right of way to in which boy was drowned, was not visible from Broadway. It is 300 feet from this corner street, and did not attract him onto premises of to the canal bank. district, defendant cannot be held liable as for For the convenience of the contractor conmaintaining attractive nuisance, where spoil structing the canal, a roadway was opened bank along canal was what first attracted boy across the right of way north from the terto premises.

mination of Ogden avenue.

No work had

been done at this particular point for about Appeal from Appellate Court, First Dis- 2 years, and the unfinished banks had caved trict, on Appeal from Superior Court, Cook in, so that there was an incline from the County; John W. Priehs, Judge.

private roadway down to the water's edge. Action by August Mindeman, administra- in the excavation beyond the end of the tor of the estate of Roy Mindeman, deceased, finished canal walls there is a pool of water, against the Sanitary District of Chicago, alin which considerable rubbish was floating.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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