Rehearing denied September 4, 1930 PETITION FOR REHEARING DENIED (290 P. 745) The petition for rehearing and the brief which accompanies it displays much evidence that the defendant has painstakingly compared the recitals of fact contained in our decision with the voluminous record upon which it is based. When we prepared our decision, which constitutes a review of almost a decade of important litigation prosecuted through *Page 380 many courts, we were fearful lest we might omit some important fact or attach undue significance to some minor detail; but, since the brief now before us presents practically no new argument and challenges our findings in no important detail, we feel an added assurance that our conclusions are free from any serious error.
We deem it unnecessary to express our views upon all of the issues presented by the petition for rehearing and its accompanying brief, many of which are only restatements of issues already disposed of.
The brief argues once more the admissibility of the testimony which the defendant sought to introduce by affidavit at the time of the argument before this court. It states that he sought from the referees a postponement of the day of trial so that he might properly prepare his defense against the charges that he issued checks at times when his bank credit was inadequate. A careful review of the transcript of the proceedings before the referees contains no indication that such a request was made. Our decision, in disposing of the motion to introduce this new evidence, mentioned the defendant's desire to offer the testimony of one George Celsi, who is the manager of the Basket Grocery Delicatessen Company. Our opinion states: "Mr. Celsi did not testify at the trial although he was present upon the subpoena of the defendant and held a conference with him. It seems to us that under these circumstances it is now too late to ask the court to reopen the taking of testimony in order that Mr. Celsi might give the foregoing testimony." The petition for rehearing states:
"In the prevailing opinion of the supreme court it is said: `Mr. Celsi did not testify at the trial, although *Page 381 he was present upon the subpoena of the defendant and held a conference with him.' This is utterly untrue. Mr. Celsi had been subpoenaed by the defendant, but did not come to Salem as he could not be found at the time this matter came up, and the only place in the record where this statement appears is in the argument of one of the prosecutors whose innocent mistake in this regard misled the Honorable Justice who wrote the prevailing opinion."
We now quote from page 219 of the transcript of testimony taken before the referees; the witness upon the stand is the defendant himself. "Q. When did you discuss it with him? A. I discussed it with Mr. Celsi, I subpoenaed him up here and discussed it a week ago." We are satisfied that this excerpt, taken from the defendant's testimony, warrants the statement appearing in our decision.
The petition for rehearing copies occasional extracts from the briefs of the defendant in the first suit, wherein chance remarks are made that the heirs were the ones who commenced the first suit; that Wemme's will contained a provision for a reversion to the heirs; that "We are representing the heirs, and we are authorized by them to appear," and like statements. The defendant argues that these statements, in which the words "the heirs," and not the name of the corporation, was employed, substantiate his contention that in the first suit he made no representation that he was appearing on behalf of the corporation. These rare remarks are found in briefs whose title pages contain the name of the corporation as a party plaintiff. The mere fact that the defendant, in a few instances, referred to his clients as "the heirs" in briefs, whose title pages particularized the names of his clients, does *Page 382 not demonstrate that the use of the quoted words was intended to indicate that he did not represent the corporation. The will bequeathed to the heirs substantially all of the capital stock of the corporation. If the Alien Property Custodian had not seized the shares the corporation could have been readily deemed the alter ego of the heirs. Even lawyers, when they are not concerned with technical niceties, frequently disregard the corporate title, and refer to the business by the name of its principal stockholder. In the present instance the heirs still regarded themselves as the stockholders even after the Alien Property Custodian had assumed charge of their stock and of the corporation; the defendant did likewise. They were the ones who instigated litigation on behalf of the corporation; in fact the heirs continued their interest in the corporation to such a substantial extent that they agreed to indemnify the Alien Property Custodian against all costs if he would file the suits which they urged him to commence. It was in truth a situation where the relationship between the heirs, the corporation, and the defendant, disregarded the corporate entity and considered the individuals as the important personages. Under these circumstances the occasional chance reference to "the heirs" could very well have been intended to include the corporation; or, possibly the defendant regarded the corporation as of such slight importance that he deemed it unnecessary to make special mention of it. Be this as it may Mr. Mannix in numerous instances, cited in our previous decision, positively represented to the courts in the course of the first suit that the corporation was a party to it.
The defendant, in endeavoring to substantiate his contention that he did not make the corporation a party *Page 383 plaintiff to the first suit, reprints in his petition for rehearing the following excerpt taken from page 259, record of the Circuit Court of Appeals:
"Mr. Littlefield: Here is another matter I talked to counsel about, that is this: In the original case the alien heirs were first named parties plaintiff and the Christian Science Churches were named as parties defendant. Later on the E. Henry Wemme Endowment Fund was made a party defendant, but no order of any kind was ever made authorizing them to be made a party defendant. Later on, and in the same case, the attorney general of the state of Oregon was made a party defendant, but no order was ever entered authorizing him to be made a party defendant. Later on the E. Henry Wemme Company was made a plaintiff in that same suit, and no order was even entered authorizing the E. Henry Wemme Company to be made a party plaintiff. You will stipulate that as a fact, will you not?
"Mr. Mannix: I will stipulate what the record shows. I am not quite sure that you are right on that.
"Mr. Littlefield: I thought you understood that. I will introduce the record if you have any doubt about it.
"Mr. Mannix: Yes, I think it is better to introduce the record. I think, your Honor, it may be stipulated that the first place in which the name of the E. Henry Wemme Company appears in the judgment roll of the state court is in the findings of fact filed by Judge Corliss after the suit was over.
"Mr. Littlefield: I won't stipulate that.
"Mr. Mannix: I am not saying you will or won't. I just want to call the court's attention to it. May I show this to your Honor?
"Court (Judge Wolverton): What is it?
"Mr. Mannix: I want to show your Honor the first place where the name of the E. Henry Wemme Company appears in this litigation. It appears in the litigation first in the findings of fact and conclusions of law, in the state court.
"Court (Judge Wolverton): In the circuit court?
"Mr. Mannix: In the circuit court, yes." *Page 384
We have again examined the transcript of record presented by the defendant to the United States Circuit Court of Appeals; we notice that the above is followed immediately by:
"Mr. Wickey: Mr. Littlefield was stipulating about there being no order in the circuit court as to the admission of these certain parties in suit in that court; that is, that they did not obtain a rule or order from the court permitting their being admitted as parties. Judge Littlefield made that statement here a minute ago as a stipulation. I say we have no objection to that — that there was no order in the state court, the circuit court, admitting these parties as defendants or plaintiffs, or whatever it was.
"Court: The parties simply appeared without leave?
"Mr. Wickey: They were made parties, and appeared without leave of court, yes.
"Court: I understand.
"Mr. Wickey: No objection to that. If that is the fact, let it go in."
Mr. Wickey was associate counsel with Mr. Mannix in the suit maintained in the federal courts. It will be observed that in the presence of Mr. Mannix, and as a portion of a colloquy in which the later participated Wickey outlined the manner in which the corporation had come into the case, and that it coincides with the conclusions expressed in our previous decision.
We deem it necessary to express our views upon only one more of the contentions advanced by Mr. Mannix. He calls to our attention the portion of the decision wherein we quoted an excerpt from "Trading with the Enemy Act." The defendant's brief states that August Wemme was not an alien enemy living in Germany, but was "a friendly alien domiciled in the *Page 385 United States for a long time prior to 1922." Before preparing our decision we examined the record carefully to determine the status of the Wemme heirs at the time when the first suit was filed; the recitals in the pleadings verified by August Wemme and the briefs signed by this defendant stated that the heirs were residents and citizens of Germany. The defendant also contends that since the war with Germany terminated on the second day of July, 1921, the Wemme heirs had capacity to sue when the complaint was filed in the first suit. Our decision signified that we entertained a different understanding. In confessing an error in this respect we accompany it with the explanation that we failed in our decision to express the precise thought that was in our minds. When the first suit was ready for trial the Alien Property Custodian was still in possession of the shares of corporate stock and other rights bequeathed to the heirs by the deceased. The termination of the war did not at once restore them to their property. Almost two years after the termination of the first suit the defendant found it necessary to institute the second one in the name of the Alien Property Custodian, who was still in charge of the affairs of the corporation. Under these circumstances we fail to understand how the heirs could have maintained the first suit. In fact the defendant many times testified that as he was preparing the first suit for trial he was greatly concerned lest the Alien Property Custodian would confiscate everything that the heirs might recover. This situation, we believe, convinced the defendant that it was very desirable to add the corporation as a party plaintiff in the first suit. The corporation and not the heirs was the residuary legatee of the estate. It is so evident that this circumstance would *Page 386 have caused Mr. Mannix to make the corporation a party plaintiff the moment he received the Alien Property Custodian's consent that we have previously deemed it unnecessary to make mention of it.
Mr. Mannix brings to a close his argument for a rehearing with the charge that this court has been intimidated by the fact that Mr. George W. Joseph, the defendant's accuser, immediately preceding the announcement of our decision became the Republican nominee for governor of our state. Upon the same day the petition for rehearing was filed Mr. Joseph was removed from this life to the great tribunal above. We had hoped that our analysis of the evidence, practically all of which was taken from copies of the public records, would bear conviction that we sought the facts and let the result abide the event. The evidence persuaded our minds that the revocation of the defendant's license was not only warranted but demanded. Mr. Mannix does not argue that the record fails to justify the severe discipline imposed, and, as previously stated, his criticism of our findings instead of shaking our confidence in them convinces us that they are fully justified. To disbar a brother attorney, especially one who has practiced extensively in the courts of this state, and who has many times displayed a learning of the law which has commanded our admiration, is a most unpleasant task. It is one which we would have avoided had not our duty commanded its performance. Naturally under such circumstances the mind is loath to draw a result which will bring shame to the attorney and deprive him of his franchise to earn a livelihood by the means which he has industriously cultivated ever since he reached manhood. However, the facts have been announced; they have been gathered from a *Page 387 record of which the defendant was the author. Now to have it said that something other than the evidence brought us to our conclusion detracts from that scant satisfaction we anticipated would be ours when an uninviting task had been finally terminated.
Being convinced that the record warrants the conclusion which our decision announced, it follows that the petition for rehearing will be denied.
McBRIDE and RAND, JJ., did not participate in this opinion.