
    (Eighth Circuit—Cuyahoga Co. O., Circuit Court
    Jan.Term, 1899.)
    Before Caldwell, Hale and Laubie, JJ. (Judge Laubie of the Seventh Circuit taking the place of Judge MarviD.)
    IN THE MATTER OF THE PROCEEDINGS AGAINST FRANK E. DELLENBAUGH.
    
      Findings of the Court.
    
    As to the second specification, relating to the action of Judge Dellenbaugh in hearing and determining the Manning divorce case, it appearing from the evidence that in this matter he assumed to act in a judicial capacity, held, that this court has no jurisdiction, and the remedy lies with the General Assembly, by way of impeachment.
    (For the decision of the questions of law in this case, see, ante, page 106.)
   Hale, J.

In the matter of'the proceedings against Frank E. Dell-enbaugh for disbarment.

There was a sufficient discussion of the law applicable to the case in passing upon the demurrer, by my associate, and there will be no further discussion of the law.

In considering the evidence submitted on ^ the trial of this case, we have found no fact against the respondent which was not supported by evidence clear and convincing.

We regard the case more in analogy with a criminal proceeding than a civil action, and have endeavored to give to the respondent the benefit of any real uncertainty arising out of a fair, careful and candid consideration of the evidence. More than this, no fact has been found against the respondent that has not only received the assent, but the approving judgment of each member of the court. We believe that we fully appreciate the gravity of the charges made and the care with which every step should be taken in the consideration of this case.

The statute under which these proceedings are instituted is section 563:

“The supreme court, the circuit court, or the court of common pleas may suspend or remove any attorney at law from office, for either of the following causes: misconduct in office, conviction of crime involving "moral turpitude, or unprofessional conduct involving moral turpitude.’’

That is as far as we need to read the statute,

The charges made are under the first and third subdivisions of the statute which I have read. The respondent is charged, first, with having been guilty of misconduct in his office as an attorney at law of the state of Ohio; and,secondly, with having been guilty of unprofessional couduct involving moral turpitude. The facts relied upon in support of these charges, are embodied in three specifications of facts.

Specification first is, in brief, and in substance, that the respondent Dellenbaugh was, on or about the 30th day of January, 1895, employed by one Edith Manning as her attorney to render to her his professional assistance in relation to matters growing out of the alleged illicit relations between her husband, George A. Manning, and one Jane Doe; that after said retainer and while he was in the discharge of his duties incident thereto, the respondent was, on April ‘22, 1895, appointed to and assumed the office and duties of judge of the court of common pleas of the third subdivision of the fourth judicial district of the state of Ohio. That notwithstanding such appointment the respondent continued to act, under his retainer, for Mrs. Manning. That about the 1st of July, 1895, he associated with him Vernon H. Burke,an attorney at this bar. That on or about the 6th day of July, 1895, Burke,by the solicitation and at the request of the respondent, wrongfully, corruptly, and by threats of exposure of the illicit relations between Jane Doe and Manning, and by promises to shield her from' exposure, obtained from her, the sum of ten thousand dollars wrongfully and corruptly. It is conceded that the sum of ten thousand dollars was obtained; five thousand of it paid in cash, and notes for the remainder taken, Of the five thousand dollars, ultimately Mrs. Manning received two thousand dollars, — and Burke, or Dellenbaugh and Burke, received three thousand dollars.

We refrain from entering into as full discussion of the evidence in support and denial of the facts of this specification, as might be done, for the reason that the facts therein contained, are relied upon to support the charges made against Burke growing out of the same transaction, who has not yet been beard in his defense.

Something, however, must be said as to the respondent’s connection with that affair.

Both the respondent Dellenbaugh and the witness Burke have given their testimony before ' us. The respondent’s statement is to the effect that at the time he assumed the office of judge of the court of common pleas on the 22nd of April, 1895, he withdrew from the case of Manning v. Manning and turned it over to Burke, and thereafter had ■nothing whatever to do with the case. While Burke says that he was first called into the case on or about the 6th day of July, 1895, and that before that time he had no knowledge of the existence of such a case.

If we can rely upon the testimony of witnesses seemingly disinterested, neither of these statements can be strictly true.

It is conceded that Christian, a detective, was employed as a detective in the case, by the respondent Dellenbaugh. The time of that appointment is fixed by the respondent to have been on'or about the 1st day of April, 1895; while the detective’s testimony is to the effect that he was employed on the 29th day of April and subsequent to the time that Judge Dellenbaugh assumed his office as judge of the court of common pleas.

Christian, in the prosecution Of his employment as a detective and while engaged in that employment as we understand, was arrested and brought before the mayor of the village of Glenville, and on a plea,of guilty'a fine and costs were assessed against him. This was on the 18th day of June, 1895. The next day after his arrest and after the fine had been assessed, both Dellenbaugh and Burke appeared before that official, and asked the release of the fine or judgment against Christian for the reason that he was employed by them and was in the legitimate prosecution of that employment — either employed by one or both. Each attempted to say that he went to see the mayor, and that the interview was had at the instance of the other.

The more reasonable supposition or the more reasonable conclusion from the evidence, is, that each was there because of his interest in the case in which Christian was engaged,.

Further Christian testifies that his first acquaintance with Mrs. Manning was an introduction to her in the criminal court-room by Judge Dellenbaugh. There was, according to the testimony of Christian'and Burke, a meeting at the Kennard House, in which were present Burke, Christian and Dellenbaugh, and the subject matter of dealing with Jane Doe was .there discussed to some extent — Christian and Burke both testified to that meeting; it is denied in toto by Judge Dellenbaugh.

We have, in the consideration of this testimony in which these two parties are so vitally interested, thought it safer to take the testimony of the third party, who had apparently no interest in the case. We are inclined to think that Judge Dellenbaugh is mistaken as to there being no such meeting at the Kennard House.

Again, as showing the connection of the respondent with the case, the money, as I have said before, came into the hands of Burke. Some of it was handled by the respondent Dellenbaugh; there isa difference as to how it came into his hands. It was by checks,drawn by Burke, payable to the order of Mrs, Manning, Those checks were endorsed by Dellenbaugh as attorney in fact for Mrs. Manning, and drafts and certificate of deposit obtained and forwarded to her. He settled with Christian — receiving the money from Mrs. Manning to do so. His statements befpre the investigating and trial committees, which he has corrected on this trial, give some countenance from his own lips to the fact that he was engaged in the case .later than he now says. In particular before the trial committee he referred to what is known as the Russell-Glenn affair, fixing on that event which be now says, learning that it occurred long after he went upon the bench, leads him to say that he was mistaken in referring to it as one of the events that he was cognizant of. It would seem a little unnatural that the time should be the prominent thing rather than the event.

Again, the parties are at. issue in the testimony whether Judge Dellenbaugh received any portion of the three.thous- and dollars or of the thirty-three hundred dollars which, was ultimately retained by Burke. Upon that issue we have, not only the statement of Burke as to the payment by him, and the manner in which it was paid to Dellenbaugh, but he produces a check of one thousand dollars' drawn upon the same day that the settlement was made; the check shows that it was paid. There is no evidence so far as we remember, outside of the check itself as to just when it was paid, but, perhaps, the fair presumption is that it was paid at its date. If that thing is a fiction, the bank books would show something about it, whether Burke drew or did not draw upon that day the currency from the bank. There is no-attempt to controvert that fact. Whether there is anything in the fact that would be of any service whatever, I am not prepared to say, because there is no evidence upon that point; but the fact that Burke in connection with his testimony produces a check that was actually paid, is of some value.

Then, soon after this matter received its first airing through the newspapers, there was a meeting of the friends of Judge Dellenbaugh at the office of Wilcox, Collister & Hogan. There were two meetings in that office, At the first, several witnesses testified as to what Judge Dellen-baugh said, and they differ as to the statements he is said to have made. On the second occasion there were present Collister, Hogan, Henry and Dellenbaugh; they were then, at that time, interested for Judge Dellenbaugh; and they, Collister and Hogan both, say that he not only said that he had received one thousand dollars, but that he fortified it by saying that he had done the work in the case, and was entitled to it — that the work was done in the case, all but the finishing touches.

Now, looking to all the circumstances surrounding that transaction, they point in the direction that the respondent did get a portion of that money. In this we are not, as it will be seen, relying on the testimony of Burke only, who it is claimed is impeached by statements made out of court as detailed by witnesses, differing from those made, on the trial. That'testimony, of course, was incompetent as tending to establish or negative the main fact as to whether he did or did not receive it. It is only competent to affect the value of Burke’s testimony, and was admitted for that purpose alone. To what extent there was any substantial contradiction of facts, we need not discuss.

No one fact found by us rests upon the unsupported testimony of Burke who, of course, is deeply interested in the outcome of this transaction.

We find, however, that upon this question, his testimony is supported by the circumstances of the case, and also by the admissions of the respondent.

So that we think that down to the time of the receipt of this money Judge Dellenbaugh was not keeping entirely aloof from the case. Burke’s testimony, however, that he knew nothing of the case until July 6th, seems to be contradicted by other testimony upon which we ought to be able to rely. Miss Kent’s statement is that a day or two, or a very short time before Judge Dellenbaugh took his place upon the common pleas bench, she with Mrs. Manning went to his office; that Mrs. Manning was there told by Dellenbaugh that he must withdraw from the case, that he would put it into the hands of Burke; that they thereupon went to Burke’s office where Mrs. Manning was introduced to Burke, and that thereafter they frequently visited the office of Burke during the months of May and June, and witness Talcott says that his office adjoined that of Burke’s,having the same reception room; that these parties at some time, Mrs. Manning and Miss Kent, were frequently at Burke’s office over a period of a month or two — but of course, that may have been later, But after the receipt of this money and its distribution there was no call for the frequent visits of Mrs. Manning to Burke’s office.

And we are inclined to think and to hold that during those months she was to some extent visiting Burke’s office, and that he had something to do with the case.

But, coming to the facts immediately connected with the transaction in which the money was obtained from Jane Doe, what is the evidence? Except what may be gathered from the testimony of Christian, and the circumstances some of which I have referred to-, the witnesses, who knew about what took place just prior to, and during the time and immediately after that event, are the respondent Del-lenbaugh, Burke who is jointly charged with the wrong then committed, and Miss Kent. Burke says the arrangement under which he went to see Jane Doe, was made in the criminal court-room at a meeting in which Mrs. Manning, Mis3 Kent,-Judge Dellenbaugh and himself were present; that they discussed the situation,and he was, either at his own motion or at the suggestion of the judge,the one who went to see Jane Doe, discussed the matter with her, received from her a proposition of settlement, reported the result of the interview back to the meeting that he had left, .and after much discussion it was agreed that the proposition that had been made should be accepted, he having arranged for a meeting at his office the next morning with Jane Doe. While Miss Kent says that at Burke’s office there was a meeting between herself, Mrs. Manning and Burke, in which they went over the reports which the detective had received, and there it was agreed that he from that place ■ should go to see Jane Doe; that Burke- left, did go, returned to the same place, and reported the result of the interview with Jane Doe; and that there they discussed the propriety of making a settlement; the next morning a meeting was had at the office of Burke, and the whole matter closed up, and that Dellenbáugh was not there at all. Miss Kent's testimony is not-entirely satisfactory to the court, but she is the only really disinterested witness to that transaction — to the immediate facts of the transaction.

After giving as careful review of this as we are able, and under the rules that I announced that we have adopted, if the fact of the respondent’s connection with this transaction of obtaining this money was to be determined by a mere preponderance of the evidence, we should not hesitate •to hold him equally responsible with Burke; but there is such conflict of the evidence produced that we do not feel justified in finding that his responsibility for that particular transaction is established by clear and convincing evidence.

As to the second specification, we overruled the demurrer to the specification, for the reason that.it is alleged that all that was done on the hearing and the determination of the ■divorce case, was done by him as the attorney of Mrs. Manning and was in no sense a judicial act.

' On the evidence produced, we hold that in the trial of that case, he acted or assumed to act in his official capacity as a judge, and that the remedy for any misconduct or wrong done in connection therewith, should be in another "tribunal.

Specification Third. Specification third is, in substance, that on the 28th day of October, 1896, the respondent Del-.lenbaugh pretended to hear and decide the divorce case of Ediih Manning against George Manning.. That all the time be was the real attorney in the case, although Burke, at his instance, was acting as the ostensible attorney for the plaintiff. That on and prior to this time there was no entry of the case upon the trial docket of the court, nor was there any entry of the case upon any of the dockets kept in the office of the clerk or by him, and no entry was made by respondent indicating that ihe case had been heard and tried upon any docket, the only entry having been made upon the file wrapper containing the papers. And very soon thereafter, Judge Dellenbaugh’s official term as judge of the court of common pleas expired, at which time no journal entry had been entered upon the journal, That thereafter, respondent corruptly conspired with or instigated Burke to get upon the journals of the court a decree of divorce. That after an attempt through Burke to get upon the journals a decree not authenticated by any judge, and after tbe refusal of the three judges,or at least one of them, to authenticate such journal entry, and a refusal by said judges to allow said entry to be made, the respondent after the expiration of his term of office and while a practicing attorney, caused another decree to be prepared, which he endorsed “O. K., Dellenbaugh, Judge,-” which he took to the clerk to whom he falsely stated that the journal entry then produced was the original entry prepared in the case, and was by him, while judge, during his term, endorsed as therein produced, and against the positive orders of one of the judges at least, induced and procured the clerk to enter said decree upon the said journals of said court. The entry was made upon a blank space on the journal of date of October 28, 1895.

We are constrained to say that there is a web of wrongdoing running through this whole transaction.

Evidence is produced on the part of the prosecution, that Dellenbaugh first was solicited on behalf of Mrs. Manning to obtain for her' a divorce. The witness Hickox testifies that he saw Judge Dellenbaugh for that purpose, inquired whether he would take a divorce case,and whether he would take Mrs. Manning’s case. That afterwards, he being told by Judge Dellenbaugh that he must see Mrs. Manning before deciding, went with Mrs. Manning to Dellenbaugh’s office, and there introduced her to Dellenbaugh and left. The judge says that he was introduced to Mrs. Manning by Mrs. Robinson of Pittsburg, at which time both Mrs. Robinson and Mrs. Manning were strangers to him; he ignores the entire facts testified to by Hickox.

It seems to us that there has been, an undue effort to get away from the divorce case and to bring into prominence the case for the alienation of affections.

If we can rely upon the testimony of Hickox, the original start was for a divorce. However, we have shown, most clearly we think, that the respondent kept a watch over the case of Mrs. Manning from the beginning, or until the ten thousand dollars was received and destributed. The evidence is such in the case, that we are compelled to find that the respondent knew of the commencement of the divorce case; that he was cognizant of the most extraordinary efforts and proceedings taken to keep the case from the public, including the substitution of the name of Webster as an attorney in the divorce case. He was, undoubtedly, informed of the agreement to shield Jane Doe from exposure, and as a part of the plan to carry out that agreement the case was heard in the manner disclosed by the evidence' — I mean the divorce case, without a single entry upon any of the dockets or records of the court indicating that any such case was pending. There was a trial such as it was, and a memorandum made on the file wrapper containing the papers, and this is all.

In this way the case was left when Judge Dellenbaugh left the bench. The journals of the court were then under the control of the then judges of the court. It was for them to determine what journal entries should and what should not go upon the records of the court. If, on investigation, the judges had ascertained all the facts concerning the divorce case of Manning v. Manning, as disclosed upon this trial, they would have been fully justified in keeping from the records of the court that decree, and insisting that the case be set down for trial, and the case regularly tried.

Judge Dellenbaugh’s official term had expired, and he had no official authority over any of the court records.

It is conceded that there was an effort at some time to get a journal entry on tbe journal that had not been O.. K.’d.

Judge Lamson says that he was in room one at the January term, 1896, and it came to his knowledge through the-clerk that there was an attempt to put upon the journal such, an entry, which he stopped. Judge Ong succeeded him in room one at the April term. It is beyond dispute that Burke went to the clerk with a decree not authenticated or O. K.’d. The clerk referred him to Judge Logue who was. in room six; he interviewed Judge Logue, who refused to-make the entry by which the journal could be properly made. He returned to the clerk. The clerk thereafter took the journal entry himself, went to Judge Logue— some of. the testimony showing that Mrs. Manning was with, him; the clerk does not remember that she was. Judge Logue still refused to allow the entry to go upon the journal, but suggested that they consult Judge Ong who was in room one, which was dons, and he not only refused, .but directed that it should not be journalized. Thereupon the clerk handed' the journal back to Burke with the instruction that none of the judges would authorize its entry. After that Judge-Dellenbaugh brought to the clerk a journal entry having; upon it “O. K., Dellenbaugh, Judge.” He stated to the clerk that that was the original entry drawn; that it had been O. K.’d by him while upon the bench, and was all. regular and should be entered. The clerk said to him ‘‘Well, that obviates all objections, and I will enter it.”' But he afterwards saw Judge Ong who again told him (the-clerk) to keep it from the records.

It is conceded that there was this controversy over getting this journal entry upon the records. When did it take-place? In the first place, Judge Logue says he was in-room six when that happened. He was in room six in November and December, 1895, and in room six, April1 term, 1896. Judge Ong was in number one at the April-term, 1896. Judge Lamson was in number one at the January term, 1896. It seems to us very plain from the-statements of the judges, that that controversy to'ok place-at the April term of 1896.

Judge Dellenbaugh’s explanation and statement to us is,. that on the day the case was heard before him, or on the following day, a journal entry in the Manning case was handed him which he O. K.’d and gave back to Burke. That after the effort was made by Burke to get the first journal entry recorded, he succeeded in finding this original journal entry in the office of Burke, and took it to the clerk with the statement above quoted.

Now, both of these journal entries are typewritten. The-stenographer who took the entries in short-hand and wrote them out upon the typewriter, says that the ' first journal entry, the one that was not 0. K.’d, was made between the 12th of October and the 11 of November, and she produced her note books at the time her deposition was taken. This journal entry is an exact literal copy of the journal entry produced here upon the trial that was not O. K.’d, letter for letter. The second decree, according to the testimony of the stenographer, was dictated to her between the 10tb day of April and the 16th day of April, 1896, and that, too, is an exact copy of the decree that bears the authentication of Judge Dellenbaugh.

There is no effort made to impeach these statements -of the stenographer, or to show that there is any mistake-about it, or that there is anything suspicious about her notebooks. It corresponds with the recollection of Ong and Logue. This is not all. This case had its number 53176-at the time of its commencement; it went upon no indexes or docket kept in the clerk’s office. The journal entry finally goes upon the record, and is indexed with those cases-that had their origin in the summer of 1896

This particular case, we think from the testimony, was-indexed from the journal to the appearance docket by Nicholas, and he began that indexing in April, 1896, if we have the testimony correct.

On. the alphabetical index, the cases before 53176 are-numbers 56079 and 56080, commenced in May, 1896; the one after, number 56427, bears the date of commencement July 1st, 1896. It was transferred to an execution docket that was commenced the latter part of July or the first of' August, 1896. It is said that this journal is in the handwriting of Brown, a witness. It is on a space left in the-journal. Brown testifies to having made some mistake in the paging of the journal, and correcting it afterwards. It is shown that the cases upon the pages before'and after the Manning case have not been changed.

White, Blandin, Hills and Hadden, for Prosecution.

Ingersoll, Boynton and Hogsett, for Respondent.

It is said that a man by the name of Ewing who was the bailiff in Judge Dellenbaugh’s room at the time the divorce was heard, received this journal entry and handed it to Judge Dellenbaugh. We have not the slightest idea that Ewing remembers this particular case, from his own testimony. Some of this testimony looks as though it was made to fit a theory rather than facts which parties really know.

It is perfectly apparent that the journal entry which Judge Dellenbaugh took to the-clerk, bearing his O. Bh, could not have been in existence at the time he left the bench, November 2, 1895, and the same was not and could not have been O. E.’d by him before that time, and that his statement to the clerk was not true. By these false statements the clerk was deceived and the express orders of the judges, or at least one of them, were disregarded and evaded. Whatever the effect may be, these are facts so clearly established, there can be no reasonable doubt of their existence.

We, therefore, find the charges made against the respondent sustained by the facts specified and alleged in this third specification.

Similar charges are made against Burke, growing out of the joint action of the parties, and we deem it best to withhold the fixing of any penalty in this case until that case shall have been determined.  