American Surety Co. v. Hoehl

The following opinion was filed May 1, 1923: Crownhart, J. The appellant Carchidi was appointed administrator with will annexed of the estate of Christina Hoehl by the county court of Milwaukee county. He made a written application for an official bond of $11,000 to the American Surety Company, in which he represented that the estate consisted of “bonds.” He wrote a letter to Mr. Benjamin Poss, attorney for the estate, directing him to make out the inventory of the property to be filed, and gave [196] him in the letter a list of the property in’ his possession belonging to the estate, which included $9,000 in Liberty bonds. Shortly after his appointment Carchidi left for Italy on a business trip. The appellant American Swrety Company, his surety, became suspicious and secured an order from the county court impounding the contents of a safety-deposit box of Carchidi at the First National Bank, and secured an order citing Carchidi to show cause why he should not account for his trust and the surety company be relieved from his bond. Upon such citation Carchidi appeared, filed his inventory, in which the bonds referred to in the letter to the attorney did not appear, and then he filed his resignation as administrator, which was accepted by the county court. In the meantime Mr. Poss had resigned as attorney for Carchidi, and Mr. Stebbins appeared for him, who was later succeeded by Mr. Friend, who appeared in these proceedings as attorney for Carchidi. The court proceeded to take evidence as to the accuracy of Carchidi’s account as shown by the inventory, and at the conclusion of the evidence found that Carchidi had received as the property of the estate nine $1,000 Liberty bonds which he had not reported in the inventory. The court adjudged that the inventory be amended to include such bonds, and ordered Carchidi to turn over the property of the estate, including such bonds, to his successor, failing which the successor was ordered to bring suit against Carchidi and the surety company to- recover the property. Both Carchidi and the surety company made applications upon affidavits asking for a new hearing, which were denied by the court. The appellants appealed from the judgment amending the inventory and the order denying a rehearing, assigning as errors that there was not sufficient competent evidence to justify the judgment, and claiming an abuse of discretion of the court in not granting a rehearing. Two important questions arise in this cause for determination by this court: First, Was the letter written by Carchidi [197] to his attorney, Mr. Poss, admissible in evidence? Second, Did the appellants have a fair and impartial trial in the case ? Sec. 4076, Stats. 1921, provides that “An attorney or counselor at law shall not be allowed to disclose a communication made by his client to him or his advice given thereon in the course of his professional employment.” This statute has been interpreted by this court not to include a communication intended to be made public, or which is not confidential in its nature and not made to secure professional advice. C. Aultman & Co. v. Ritter, 81 Wis. 395, 51 N. W. 569; Koeber v. Somers, 108 Wis. 497, 84 N. W. 991; Herman v. Schlesinger, 114 Wis. 382, 90 N. W. 460. Moreover, it should be noted that Mr. Poss was not the appellant’s private attorney. He was attorney for the administrator, in a semi-public capacity. His duty was to serve the estate and the court as well as the administrator, Car-chidi. In his relations to the estate and the court his duties were not confidential or private. The objection to the admission of the letter in evidence was therefore untenable. Mr. Poss performed his full duty as attorney to the court and his client when he raised the objection to testifying before the court and submitted to the court’s decision. A careful review of the record discloses that the issue to be tried before the court was never properly framed, and the parties were evidently in doubt as to what the issues were and what was to be determined by the court or the effect of such determination. The result was a good deal of jockeying for position, and the court became impatient over the situation. No doubt the court felt that the estate was being defrauded, but from the whole record this court has come to the conclusion that the appellants were not fully apprised of the issues and that the issues were not fully presented on their part for that reason, and for the further reason that the court ruled out evidence that was properly offered by the defense. Before a party may be [198] convicted of fraud lie must be given a fair trial, and the evidence should be clear and convincing. The evidence discloses that the court brought the proceedings to an abrupt conclusion after denying the offer of the appellant Carchidi to introduce competent evidence in his defense. While we are reluctant to grant a new trial in this matter, we feel that, judgment amending the inventory being res adjudicata, justice demands that the issues should be properly framed and the appellants should have a fair and impartial hearing. Sec. 2405w, Stats. 1921. By the Court. — The order and judgment of the county court are reversed, and the cause remanded for further proceedings according to' law. A motion for a rehearing was denied, without costs, on June 18, 1923.