From the statement contained in the foregoing opinion, it appears that the respondent, Gr. W. Tyler, is charged in this proceeding with having agreed to act as the attorney for complainant in the collection of certain money, and by reason of such employment received from complainant certain policies of insurance, a promissory note, and an authority in writing to receive said money; that thereafter he collected said money by virtue of said employment, and the confidence reposed in him as such attorney, etc. It will be remembered that Mrs. Hedge had held the note and policies as guardian of her two sons (to whose estates the note belonged), and that she had placed them in the hands of Mr. Hogan as her attorney; that after one of the sons attained majority, Mr. Hogan, for the consideration of some $850, took an assignment of his interest, amounting to about $4,500; that Mr. Hogan then asserted his right to retain the possession of the note and policies, and refused to surrender them to Mrs. Hedge, from whom he had received them as her attorney; that Mrs. Hedge and the son claimed the latter had been overreached in the matter of the assignment, and Mrs. Hedge employed Mr. Tyler to get the note and policies, from Mr. Hogan, of which employment the latter had notice. Mrs. Hedge was unable to recover the money on the policies, as they were out of her possession, and Mr. Hogan had given notice to the companies not to pay to her; neither would the companies pay to Mr. Hogan. Thereupon, at an interview had between Mr. Tyler and Mr. Hogan, the latter delivered the policies *373and note to the former, and Mr. Tyler gave bis receipt therefor, in which he stated: “ I have received foregoing papers, at the request of Charlotte Hedge, that said J. M. Hogan should deliver same to me as her attorney.” The policies were paid without suits. It seems clear to me that as between Mrs. Hedge and Mr. Hogan, Mr. Tyler was the attorney of the former, of which Mr. Hogan had notice, and that he (Hogan) delivered the papers to Tyler at the request and as the attorney of Mrs. Hedge, and not as the attorney of himself; that the allegation of employment of Tyler by Hogan as his attorney at law is not sustained. Whatever may have been the duty of Mr. Tyler to Mr. Hogan as attorney in fact, or agent, is not now for consideration; I am dealing -only with his duty as an attorney at law.
In regard to the giving of the undertaking on appeal, I am of opinion that Mr. Tyler violated his duty and obligation as an attorney at law. Hogan had recovered a judgment against him; he gave notice of appeal, and caused an undertaking to be executed and filed. The statute requires that the undertaking be accompanied with the affidavit of each surety that he is worth the sum specified in the undertaking. In my opinion, Mr. Tyler knew that the surety, Wheeler, was insolvent, and with that knowledge, procured him to join in the execution of the undertaking. His object, doubtless, was to prevent Hogan from realizing the fruits of a successful litigation. In so doing, he violated his duty as laid down in subdivision 4, section 282, Code of Civil Procedure. The acts done by Mr. Tyler and Wheeler in regard to the deed from the former to the latter do not render obscure the real transaction and its purpose.
While I am of opinion of the acts of the respondent •deserve censure and the imposition of a penalty, I am not in favor of his removal, or his suspension for an extended period. I think the penalty of suspension for six months sufficient; but there should be added the *374provision that the suspension continue thereafter until the object of requiring an undertaking, viz., payment of the judgment, interest, and costs, in case of affirmance, be accomplished.
Thornton, J., Sharpstein, J., Morrison, C. J., McKinstry, J., and McKee, J.All the justices of this court being of the opinion that the evidence proves, the respondent guilty of a violation of his duty as-attorney and counselor, and of his oath of office as such, and that the allegations in the accusation with respect to his conduct in procuring and filing the undertaking to stay execution on appeal from the judgment in the case of Hogan v. Tyler have been fully proved, and no four of the justices concurring in any other judgment than that hereinafter stated, but five of the justices, after full consultation, having agreed on the judgment following,—
It is ordered and adjudged that respondent George W. Tyler be deprived of the right to practice as attorney or counselor in any and all the courts of this state, and be suspended from practicing as attorney or counselor at. law in any of said courts, for the period of two years, from the date of the entry hereof, and until the judgment in favor of J. M. Hogan against the said respondent, mentioned and described in the accusation, shall be fully satisfied and paid, if the same shall not have been satisfied during such period of two years.
A motion for a new trial and a rehearing having been made, the following opinion thereon was rendered on the 26th of February, 1887: —
The Court.The motion for a new trial is not the proper remedy in this cause. Considered as a petition, for a rehearing, we see no reason to grant it.
Motion for a new trial and rehearing denied.