Dodd v. Reese

Decision Date05 February 1940
Docket Number27354.
PartiesDODD et al. v. REESE et al.
CourtIndiana Supreme Court

Appeal from Delaware Circuit Court; Leonidas A Guthrie, judge.

George Koons, of Muncie, David A Myers, of Greensburg, and Richard L Ewbank, of Indianapolis, for appellants.

Leffler, Ball & Rearick, of Muncie, for appellees.

FANSLER Judge.

The appellant John J. Dodd is a member of the bar of this court. In June, 1935, he filed in the Delaware Superior Court a petition by Emma L. Postel for the adoption of Ardra Wise, an adult, and the consent of Wise to the adoption, and procured an order of adoption and for the change of Wise's name to Ardra Wise Postel to be entered by the court. He prepared and witnessed, and was named as executor in, the will of Mrs Postel, which was executed on the 3rd day of July, 1935. Mrs Postel died on August 3, 1935.

On the 3rd day of March, 1937, the appellees Reese, nephews of Mrs. Postel, filed a complaint seeking to set aside the adoption proceedings, upon the ground that they were procured by fraud. It is alleged that Mrs. Postel was for more than two years prior to June, 1935, and until her death, 'a very sick woman,' and of unsound mind, and without rational moments; that Dodd was her attorney; that he entered into a conspiracy with Anna and William Cope to defraud the plaintiffs Reese; that, conspiring with the Copes, Dodd determined that it was necessary for Mrs. Postel to adopt Ardra Wise as her heir at law so as to leave no incentive for her nephews and nieces to contest a will which they intended to procure to be executed; that Dodd prepared a petition for adoption, in the presence of Anna Cope, while Mrs. Postel was in a hospital in Chicago, and caused the signature of Mrs. Postel to be signed to the petition without her knowledge or any act of hers; that Wise was unwilling that the order of adoption should be made because of knowledge that Mrs. Postel was of unsound mind, and that he was unwilling to proceed to a change in his name without the consent of his father, but that Dodd pressed and persuaded him to consent to

the adoption; that at the time the petition was presented 'the court insisted that it had misgivings about her mind and would rather have her present at the time of the adoption'; that, notwithstanding these objections, Dodd, 'corruptly and fraudulently,' procured the order to be made; that, as Dodd and Wise left the court room, Dodd winked at Wise and said: 'Didn't I put it over on the Court?' A multitude of facts are set out in great detail, which, if true, establish that Dodd, representing himself as the attorney for Mrs. Postel, but, in fact, wickedly, corruptly, and fraudulently conspiring with others, caused a petition for adoption to be filed in her name, without her knowledge or consent, and at a time when she was dying, and without mental capacity sufficient to have known or comprehended what was done; and that he procured an order of adoption to be made, over the protests of Wise, who was present, and notwithstanding the expressed scruples of the presiding judge.

Wise was made the sole defendant to this petition, and a summons was issued, returnable on the 15th day of March, 1937, and served upon Wise on March 3, 1937. On the 11th day of March, 1937, Wise filed a verified answer: 'That the averments set out in said petition of the plaintiffs are true and correct, as Defendant verily believes. That he offers to the court no objection to the granting of the prayer therein contained.' On the 13th day of March, 1937, the appellant Dodd appeared and filed a verified petition for authority to intervene as a defendant. On the 2nd day of April, 1937, the petition to intervene was amended. It is filed in the name of John J. Dodd, and John J. Dodd, as an attorney at law and officer of the court. It expressly denies in detail all of the facts alleged in the complaint which seek to establish fraud upon his part. It asserts that at the time the petition for adoption was filed Mrs. Postel was of perfectly sound mind; that the petition was prepared at her direction and request, and was personally signed by her, and that it was filed and the order of adoption procured at her request; that he was admitted to practice law in 1925, and that he had practiced continuously until the present time, and that he is of good standing as a member of the bar and as such an officer of the courts; that, while he is not named as a defendant in the complaint, the cause of action is based upon a charge of fraud upon his part; that it does not charge fraud upon the part of Mrs. Postel or the defendant Ardra Wise Postel; that the charges of fraud against him are false, and were known to be false at the time they were made; that, by his conduct as an attorney, he has built a reputation for truthfulness, honesty, and fair dealing, and has built up a large and lucrative and growing practice; that he has gained the confidence of the judges of the courts in which he practices; that his reputation and standing are of great value to him and cannot be estimated in money alone, but that their value to him is more than $50,000, and more than all of the estate left by Mrs. Postel; that if the plaintiffs procure judgment it will be an adjudication that he, and not Mrs. Postel, was guilty of wicked, corrupt, and fraudulent conduct, and of a fraud upon the court; that he has an interest in the proceeding, and should in justice and equity be permitted to intervene and file pleadings and answers and present his defense. He sets out in his petition the will of Mrs. Postel, containing eighteen items and disposing of various items of property to a sister and various nephews and nieces, and others, including Ardra Wise Postel.

On the 5th day of April, 1937, the plaintiffs filed a motion to strike out and reject the appellant's amended petition to intervene, and on the same date the defendant, Ardra Wise Postel, filed a motion to strike out and reject the petition to intervene. On the 20th day of May, 1937, Ardra Wise Postel filed a petition for leave of court to withdraw his answer and file an answer in general denial. In this petition he says that the verified answer, in which he says that the averments of the complaint are true and he offers no objection to the granting of the prayer thereof, was signed while he was at work, and that he did not read it, and did not know that he was making a sworn statement; that, as a matter of fact, he did not want to state, and does not now want to state, that the averments of the petition are true and correct; 'that as a matter of fact a portion of said averments in said petition, in the judgment of the defendant are not true and correct'; that he does not believe Mrs. Postel was for more than two years incapable of understanding and comprehending the nature and consequences of her acts, and that he does not believe she was of unsound mind for six months before her death, or at any time when he saw her; that, as to the allegations concerning the manner in which the petition for adoption was filed, he knows nothing; that he knows nothing of a conspiracy between Dodd and any other person to defraud the plaintiffs, 'and does not believe that any such conspiracy was ever entered into or existed'; that the statement in the petition that, after they left the court room, Dodd winked his eye and said to Wise: 'Didn't I put it over on the court?' is not true; 'that any and all parts of said petition which avers, or tends to aver, that any deception or fraud was practiced or undertaken on the court, is not true, and that this defendant does not believe that said John J. Dodd either undertook or intended to undertake to in any way deceive or defraud the court'; that there are other parts of the petition, the truth of which he does not desire to admit; 'and this defendant does not desire to state in his said answer heretofore filed, that he offers to the court no objection to the granting of the prayer contained in said petition.' He asked for leave to withdraw his answer and to file an answer in general denial.

On the 25th day of May, 1937, the Hon. Claude C. Ball, Judge of the Delaware Superior Court, declined further jurisdiction because he was a material witness, and, by agreement of the parties, the cause was transferred to the Delaware Circuit Court. On the same date the Delaware Circuit Court made an order impounding all the papers and pleadings in the case, and on the 7th day of June, 1937, the court sustained the plaintiffs' motion to strike out the appellant's petition to intervene as an individual and as an attorney at law. The court made an order inviting the appellant to appear and act as amicus curiae in the cause. The motion of Ardra Wise Postel to withdraw his verified answer was overruled.

Error is assigned upon the sustaining of the appellees' motion to strike out the petition of the appellant to intervene.

Section 2-222, Burns' Ind.Ann.St.1933, section 38, Baldwin's Ind.St.1934, provides: 'The court may determine any controversy between the parties before it, when it can be done without prejudice to the rights of others or by saving their rights; but when a complete determination of the controversy can not be had...

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1 cases
  • Dodd v. Reese, 27354.
    • United States
    • Supreme Court of Indiana
    • 5 Febrero 1940
    ...216 Ind. 44924 N.E.2d 995DODD et al.v.REESE et al.No. 27354.Supreme Court of Indiana.Feb. 5, Proceeding by Robert A. Reese and others against Ardra Wise Postel to set aside a decree and order of adoption, wherein John J. Dodd, and John J. Dodd, as an attorney at law, filed a petition to int......

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