The Birmingham age-herald., 1914-03-10
W|NKLER |S FINED
 S1OOO BY GRUBB Was Cited for Contempt
 and Disbarment APPEAL TO BE TAKEN
Disbarment Proceedings Dismissed. The Case Grew Out of the Filing
 of Bankruptcy Petitions Sometime Ago

Judge W. I. Grubb announced his de cision yesterday in the Max J. Winkler case MT. Winkler was cited In the United States court for contempt and disbarment. holding that contempt of court had been committed and im- posed fine of 5000 for that offense but dismissed the disharment proceed. ings
 MT Winkler and his attorney C. C. Nesmith, appeared before Judge Grubb at 5:S0 yesterday when the above fine was imposed. Exception was taken by Judge Nesmith and on his motion the fine was suspended pending an ap- peal on writ of error. The defendant has 30 days to file bill of exceptions. Went to Trial Saturday The case went to trial last Saturday before Judge Grubh and at it's con- clusion he reserved his decision until Monday. Robert N. Bell. district attor- iney. and his assistant. (. E. Kennemer represented the prosecution, and Walk CT Percy Judge C. C. Nesmith and A G. Smith appeared for the defendant The defendant was cited for contempt and disbarment by former District At
 torney O. D. Street, who acted on the recommendation of the federal grand jury for the fall term.
 The bill of complaint on information alleged that Mr. Winkler induced a ne- gro named Harris to file petition in bankruptcy. in order 10 throw the n tf company into the court of Judge Alex C. Birch, when by alternating numbers the loan company's case should have gone to the other refree. In rendering his decision Judge Grubb stateed he was convinced that the Harris bank ruptcy petition was filed for a purpose other than to be released from his no object on the part of the defendant other than preferance between .he two referees. and that it was the use of a stimulated bankruptcy case that created the contempt.
 Mr Winkler denied any attempt to use the court for an improper purpose and also denied every allegation made in the bill of information.
 Gudge GrubbFs decision was as fol- lows:
 Judge Grubb's Decision
 Tn these cases l have reached these conclusions
 "I am convinced from the evidence. without entering into details, that the Harris petition in bankruptcy was filed for a purpose other than the release of the bankrupt from his scheduled debts. T am also convinced that the other purpose was the control of the disposition or the reference of the Joseph Rich bark ruptcy case to desired referee The filing of the two petitions by the same agency within two minutes of each other and the accomplishment of the desired result in this way cannot be attributed to a mere coincidence.
 "The remaining questions is the respon- sLility of the defendant. It is clear that the responsible agent must have been a party interested in the Rich bankruptcy case. The parties so interested were the petitoning creditors and their lawyers, and the preferred creditor. the American Trust and Savings bank and it's lawyer The petitioning creditors lived away from Birmingham and 1t is clear that neither they nor their New York lawyer were responsible for the filing of the Harris case. MT. Crawford has testified for the bank that he had no knowledge of the Harris petition. He is not disputed by any witness or by the other facts, and l accept his denial of knowledge as true It is inconceivable that the bank would
 
 cept after consultation and upon advice of their lawyer. The referee to whom the Rich case was referred was absent from Birmingham, was his clerk. MT. Thompson, MT Mccullough and Mir. Smith also deny knowledge, and it Is inconceiv- able that If they have had such knowl- edge, the defendant, who was the prin- cipal attorney. could himself have been ignorant. The defendant up to the time of ha tvas ba tt iar ing creditors as well as for the bank. He could not dissolve that relationship by turning the case over to another lawyer without his clients knowledge. Nor does 1t appear satisfactorily that he was not to share in the fee allowed the attorney for the petitionng creditors.
 Improper Purpose Alleged
 This eliminates all interested persons except the defendant, and some one must have been responsible, upon the premises have arrived at, that the Harris petition Was filed for an improper purpose This itself is persuasive of the defendants re- sponsibility for it's improper use In addi- tion, it is established that through differ ent attorneys the defendant procured the filing of the two petitions: that they were each arranged for by him within less than two hours of the time they were
 filed; and that they were filed within two minutes or each other, so as to throw the Rich case to the desired referee, when otherwise it would not have gone to him. It is also established that the de- feEdant paid $2s filing fees when $3 would have sufficed if the bankrupt Harris had appeared before the referee. This shows the necessity for immediate filing. 1t Is irconceivabel that either MT. Smith or MT. Mccullough or Mr. WinlSler would not have known of the rule that required an advance of $3 only where the bankrupt signed orders for the balance, and that this rule would not have been avaied of but for the exisency which required i'm mediate fling This eNigency was not one arising in the Harris case. 1t is true that MT. Winkler denies that he procured the Harris petition to be filed for an improper purpose and l have given consideration to his denial but do not think 1t should prevail when in conflict with the only reasonable inference to be drawn from the other established facts of the case. For these reasons I think the defendant is responsible.
 Disbarment Proceedings Dropped As to the punshment-no object on de- fendants part, other than q preference as between referees. is shown by the. evil dence. The extent of defendants offense Is in using the process of the court for an improper purpose. If he had accomplished his purpose of getting his case to a de- sired referee by holding it until that referees number was open. there could have been no criticism of his conduct. It was the use of simulated bankruptcy case for this purpose that creates the contempt. I do not think that the char