In Re Filipiak

113 N.E.2d 282, 232 Ind. 414, 1953 Ind. LEXIS 218

• Court: Indiana Supreme Court
• Decided: June 16, 1953
• Docket: 28,897
• Status: Published

Opinions

Bobbitt, C. J.

This proceeding was commenced by the filing of an information in revocation of admission to practice law as an attorney by the Disciplinary Commission appointed by this court under Rule 3-21 thereof. Defendant filed his answer denying the material allegations of the information.

The Hon. Dan Pyle, Judge of the St. Joseph Circuit Court, was subsequently appointed as commissioner to hear evidence and report his findings of fact thereon. After due notice, a hearing was held on December 1 and 2, 1952, in Crown Point, Indiana, at which the Disciplinary Commission and the defendant were represented by able and competent counsel.

On February 13, 1953, the commissioner filed his report and findings of fact. Such findings disclosed that defendant did not act dishonestly or corruptly, but was not “careful and meticulous” in the making of his records as Judge of the Juvenile Court of Lake County, at the times mentioned in the information, and that all of the acts relating to the matters herein were performed by him in his capacity as Judge of the Juvenile Court and not as an attorney. The commissioner further found that the allegations of the information were not supported by a preponderance of the evidence.

To this report the Disciplinary Commission filed exceptions.

Rule 3-24 of this court pertaining to disciplinary proceedings provides that if a material issue of fact is formed, this court will appoint “one or more commissioners to hear and report the evidence and to make findings of fact, to which exceptions may be taken . . . .” Such commissioner is given power to fix the time and place of the hearing, administer oaths, subpoena witnesses, and order the taking of depositions.

The above provisions of Rule-3-24 require the commissioner to file and report the facts for the use of this court. The facts as reported by the commissioner will be presumed to be correct until the contrary is shown.

The burden was upon the Disciplinary Commission to prove the allegations of the information by a preponderance of the evidence. The commissioner’s report shows that it failed to sustain this burden.

We have carefully examined the exceptions to the commissioner’s report and in our opinion they are not sufficient to overcome the presumption of verity which attaches to the commissioner’s findings of fact. •

An examination of the evidence discloses nothing upon which we could justify a refusal to accept the facts as found by the experienced and able jurist who served as commissioner.

Upon the facts as found by the commissioner this court finds that the defendant, Anthony A. Filipiak, should not be disbarred from the practice of law in Indiana.

The petition herein is denied and the costs incurred in connection therewith are assessed against the State of Indiana.

Draper, J., not participating.

Emmert, J., concurs in result with opinion.

Gilkison, J., dissents with opinion.