The Redwood gazette., 1896-07-30
CAVITY DISSENTED.
But Only on Points in the Madi-
gan Case.

AS was stated in last weeks issue OF
this paper, Michael M. Madigan had
been refused a writ of coram nobis by
the Supreme Court, and that body
had entered an order removing him
from his Office as an attorney and
counselor at law in the courts of this
State.
The syllabus of the decision of the
Supreme Court, whereby that body
sustained the decision of Judge Web
ber, refusing the writ asked for, is as
follows:
l. The defendant made a motion to
vacate the judgement and conviction
herein and for a new trial upon affida-
Wits which were met by counter affida-
Wits on the part of the State tending to
disprove the allegations of the moving
affidavits.
The trial court denied the applica-
ton.
Held, that the case is within the rule
that when an issue Of facts is raised by
the affidavits and passed upon by the
trial court it's decision therein will not
be disturbed if there is evidence reason
ably tending to support it.
2. The defendant in his affidavit in
support of his motion charged his attor-
ney who conducted his defense with
falsely and fraudulently neglecting to
introduce certain material evidence as
requested by the defendant, and with
making false representations to him as
to what certain witness would testify.
Held, that the affidavit of such attor-
ney was admissible on behalf of the
state to disprove such charge. Order
affirmed.
The opinion of the whole court on
the subject, is quite lengthy, and the
body of it is dissented to by Justice
Canty, who, however, concurs in the
decision. The opinion follows:
The appellant in this case was in
dicted by the grand jury of the county
of Redwood, charged with the crime
of perjury. Change of venue was
taken to Brown county, where the ap-
pellant was tried, convicted and SEN
fenced. He moved for a new trial,
and appealed to the supreme court
from the order denying the same,
which order was affirmed by this
court. The decision of the supreme
court is found in 81 MINI. 425. The
appellant was afterwards released
from the penitentiary on parole, under
the laws of this state, and instituted
the present proceedings before the
judge of the district court, asking for
an order vacating the verdict of the
jury, and vacating, setting aside, and
annulling, and declaring and adjudg-
ing and determining the judgment
and conviction in said action void,
and asking for a new trial and that a
writ or error coram nobis issue out of
said court to inquire into the facts al
legged in his petition and afidavits and
settled case, and all proceedings in
such case.
The facts upon which his conviction
rested appear in the former case. Ad-
ditional facts we're presented by aff-
davits. Those offered and read by
the appellant tended to show miscon-
duct on the part of this attorney and
also on the part of the county at
torney who tried the case against him.
These aAidavits were met and con-
tradicted by counter aAidavits of his
former attorney and that of the county
attorney. His own testimony on the
trial of the action against him for per-
jury was also used to defeat his petit
tion and it tended strongly to
corroborate the counter af6davits.
In the view of the case which we take
it is unnecessary to recite the evidence
Or analize it. 1t was sharply conflict
ing.
The rule is that where an issue of
fact is raised by afidavits of the res
pective parties, and passed upon by
the court below, it's determination will
not be disturbed if there be evidence
reasonably tending to support it.
There certainly was not a clear pre-