Cuyahoga County Circuit.

be brushed aside at the outset. There is, we think, no significance in the mere name "amendment to motion for new trial," which need hinder us from treating this as an independent motion, if the ends of justice shall so require. Compare Klonne v. Bradstreet, 7 Ohio St. 323. Neither is there anything conclusive about the order in which independent events are recorded in the transcript, if they took place on the same day and the record contains no express recital as to the order of their oc

currence.

We have then this question, whether a party may, within three days after the return of a verdict against him, and after the overruling of his first motion file a second motion for a new trial upon a new ground that was not known by him to exist when his first motion was made. The sections of the Revised Statutes, relative to applications for new trial within term, are 5305 to 5308 inclusive, and they contain no express provision forbidding the practice here in question. Nor does the doctrine of res judicata apply strictly to mere motions even where such motions result in orders that are reviewable. We entertain no doubt that the trial court has full power to permit the filing of a second motion under these circumstances, and while it did not expressly give such permission in the present instance, the fact that it entertained the second motion, by hearing and disposing of it, on its merits, conclusively implies such permission (14 Enc. Pl. & Pr. 176, 183, 184 and 191, and cases cited). The fact that judgment was meanwhile entered by the clerk upon the verdict, whether prematurely or otherwise, under the provisions of Sec. 5326 R. S., is not of itself a bar to an application for a new trial. Applications of that nature may be made even after term under Sec. 5309 R. S., if the ground alleged therefor was not previously discovered by the party applying. It is true the application, if made after term, must be made by petition; but in cases where judgment is entered by the clerk, after three days have elapsed without any motion for a new trial having been filed, it can not be doubted that under 5307 the application for a new trial may still be made at the same term by the mere motion of a party who has been "unavoidably prevented from

Coal Co. v. Quirk.

filing the same within such time." In this case the motion was filed within three days, and having been heard on its merits by the court below, we hold that the evidence introduced respecting the ground of new trial therein asserted, might be, and in this case was, incorporated into a valid bill of exceptions filed within forty days after the overruling of said motion. Whether the grounds for a new trial, that were asserted only in the original motion, can be thus reviewed, we do not now decide.

The bill, which we have thus determined to consider, avers that it contains all the evidence adduced on the hearing of said motion. It is claimed, however, that this averment is plainly untrue, for the reason that the court found as a fact that the ground alleged in the motion was unknown to defendant below when his original motion was filed, whereas there is no evidence in the bill upon the subject. The record is perhaps silent as to the evidence, if any, heard by the court upon the question whether the motion was filed under circumstances which would permit it to be heard at all; but the court having affirmatively found that question in favor of the plaintiff in error, we can not in the present status of this case, and on the mere suggestion of the defendant in error, review that finding. And with respect to the evidence hcard concerning the ground asserted for a new trial, we must treat the averment of the bill as conclusive in the absence of any disclosure to the contrary.

The bill exhibits the affidavit of the bailiff temporarily acting as such in the trial court when this cause was tried and who was also a witness for the defendant. No other evidence was introduced on the hearing of the motion. He says that, during the progress of the trial, members of the jury discussed with him, and he with them, at intermissions, the general merits of the case, and particularly the meaning of the term "local trade," which was in issue therein. It is true that he was a witness for the defeated party; but his affidavit avers his familiarity with the coal trade, and we can not presume that the interchange of opinions between him and members of the jury was not prejudicial. Such conduct is grossly improper, and its inevitable tendency is in subversion of justice. We think it

Cuyahoga County Circuit.

showed such conduct of the jury as not only to warrant but to require a new trial. The judgment below is accordingly reversed and the cause remanded.

Marvin and Winch, JJ., concur.,

ATTORNEY AND CLIENT-DISBARMENT.

[Ashland (5th) Circuit Court, June Term, 1913.]

Powell, Voorhees and Shields, JJ.

IN RE. H. L. MCCRAY.

1. Retention of Larger Portion of Amount Recovered and Ground for Disbarment of Attorney.

The retention by an attorney of a larger portion of the amount recovered than the client believed to be warranted by the contract of employment, does not constitute ground for disbarment, where the client is an aged man and his inconsistent and contradictory testimony as to the terms of the contract indicates that if not an unreliable witness he is at least very forgetful.

2. Collection of Fee for Services Subsequently Regarded as Unnecessary not Moral Turpitude.

The collection from the guardian of an imbecile of a fee of $5,000 for services which resulted in a compromise whereby a large amount of cash and securities were turned over to the guardian, $2,000 of which fee was paid to another attorney for services in the same behalf, is not rendered an act of moral turpitude by the fact that these services were subsequently regarded as unnecessary and a finding to that effect was made in the common pleas court.

VOORHEES, J.

This cause is in this court by appeal from the court of common pleas of Ashland county, Ohio, and is submitted to the court upon the complaint in writing against said H. L. McCray preferred by order of the judges of the court of common pleas of the sixth district of Ohio, wherein, among other things, it is charged, as set out in the first specification under said charge, that said Henry L. McCray was guilty of unprofessional conduct involving moral turpitude in this, to-wit:

McCray, In re.

On or about October 1, 1889, said Henry L. McCray as an attorney and counselor at law was retained and employed by one Ludwig Scheriff, a resident of Ashland county, Ohio, to prosecute a certain action against the county treasurer of Ashland county for the recovery of $1,456 which a certain tax inquisitor, one E. A. Bowman, claimed was due from said Ludwig Scheriff to said county as back taxes, and which amount was paid.

Said Henry L. McCray as attorney for said Ludwig Scheriff subsequently filed a petition in the court of common pleas of said county praying judgment against the treasurer of Ashland county for the sum of $1,456 and interest from October 5, 1898.

On or about December 6, 1900, a compromise was effected between said Henry L. McCray, attorney for said Scheriff and the county treasurer on the basis of $792.02, whereupon said Henry L. McCray received and receipted to the auditor for said sum of $792.02 December 6, 1900, and signed said receipt, "McCray & McCray, attorney, L. Scheriff"; three or four weeks after McCray & McCray, received said $792.02 from the county treasurer; $150 thereof was turned over to said Scheriff; that said amount is all that said Scheriff received; said H. L. McCray then and there converting the balance thereof, to-wit, $642.02, to his own use and benefit, and refused thereafter to pay said Scheriff any further part thereof, though often requested so to do.

Said cause was heard in the court of common pleas to the judges of said sixth district upon said complaint and the specifications thereunder, resulting in a finding by said court that said Henry L. McCray has been guilty of misconduct in his office of attorney and counsellor at law involving moral turpitude as set forth in said specifications. It was therefore ordered and decreed by the court that the said Henry L. McCray, be, and he is removed from his office of attorney and counselor at law in the courts of the state of Ohio, and that the name of the said Henry L. McCray be stricken from the roll of attorneys.

To this finding and judgment of the court the said Henry L. McCray appealed to said circuit court and such proceedings

Ashland County Circuit.

were had in the premises that said cause was duly appealed to said court and the same came on for hearing at the June term, 1913, of the court of appeals of said county, which court is the successor in jurisdiction of said circuit court, to which the cause was appealed as aforesaid, and the same was submitted at said June term upon said complaint and the evidence.

The case was tried in said court on the testimony taken in the court below, and by agreement of the parties the transcript of the testimony, so taken, was submitted to the court, together with additional oral testimony in behalf of said Henry L. McCray, which transcript and oral testimony were offered by the parties on the trial and were all the evidence in the case.

In support of said complaint said Ludwig Scheriff was sworn and testified. An examination of the record containing said Scheriff's testimony discloses the fact that Mr. Scheriff is an old gentleman some eighty years of age and that his testimony is indefinite and contradictory in many particulars, but it is apparent that the transaction out of which said controversy grew was a claim of Mr. Scheriff's for the recovery of taxes that had been wrongfully assessed against him and paid, and to recover back taxes so collected from him, which amounted to over $1,500. He called upon Judge McCray in reference thereto, and it was concluded on consultation that a suit should be brought to recover back said taxes, and by agreement between Mr. Scheriff and Judge McCray the fees were to be onehalf of the amount recovered back from the county.

The case was finally compromised for the sum of $792.02. The compromise was brought about in this way. If the case had proceeded to trial Mr. Scheriff would necessarily have been a witness, wherein he would have been subject to examination concerning his property, etc., and this he absolutely refused to do. Rather than be a witness he was willing that the whole sum might be lost so far as he was concerned, as he would not go into court and subject himself to an examination. Thereupon negotiations were entered into whereby a compromise was effected for the amount above stated, viz., $792.02, and this sum was paid to Judge McCray. Afterwards $150 was paid to Mr.