Chase v. Chase

• Decision Date: 24 June 1904
• Docket Number: 20,205
• Citation: 71 N.E. 485,163 Ind. 178
• Parties: Chase v. Chase
• Court: Indiana Supreme Court

71 N.E. 485

163 Ind. 178

Chase v. Chase

No. 20,205

Supreme Court of Indiana

June 24, 1904

Original action by Moses Fowler Chase against Joseph M. Rabb as judge of the Benton Circuit Court, for a writ of mandate to compel him to settle and sign a bill of exceptions in the case of Frederick S. Chase against Moses Fowler Chase. Afterward the transcript and an assignment of errors were filed on appeal in said case, and on motion the two cases were consolidated. Motion to dismiss both the original action and the transcript and assignment of errors.

Sustained, and consolidated cause dismissed.

W. A Ketcham, A. L. Kumler, T. F. Gaylord, G. P. Haywood, C. A. Burnett and Kittredge & Wilby, for appellant.

A. C. Harris, F. C. Cutter, W. V. Stuart, E. P. Hammond, D. W. Simms, J. Frank Hanly, W. R. Wood, Daniel Fraser, W. H. Isham, S. P. Baird and H. R. Probasco, for appellee.

OPINION

Gillett, J.

On the 6th day of October, 1903, there was filed in this court what purported to be the application of Moses Fowler Chase for an alternative writ of mandate against Hon. Joseph M. Rabb, as judge of the Benton Circuit Court, to compel him to settle, approve, and sign certain bills of exceptions in a proceeding commenced by Frederick S. Chase against Moses Fowler Chase to have the latter adjudged a person of unsound mind and incapable of managing his own estate. Transcripts of such parts of the proceeding as were sought to be incorporated into bills of exceptions were filed as a part of said application. On the 13th day of October, 1903, there was filed in this court the record proper in said proceeding, together with what purported to be the assignment of errors of Moses Fowler Chase. On motion subsequently made, the two causes were ordered consolidated. Upon the appearance of Frederick S. Chase and respondent Rabb, motions were made to dismiss said proceedings in this court, on the ground that the attorneys who had instituted the same had done so without authority. Affidavits were filed in that behalf to the effect that Moses Fowler Chase was at the times mentioned, and for more than three years then last past had been, wholly demented and incapable of transacting any business whatever. There was also filed in that connection the affidavit of the prosecuting attorney of the Benton Circuit Court, to the effect that he had appeared on behalf of Moses Fowler Chase in said court, and that the steps which had been taken subsequently in that behalf were taken without his authority or consent. On the 16th day of March, 1904, a motion was filed on behalf of Frederick S. Chase that, on the records and affidavits on file in said consolidated cause, a rule issue requiring the attorneys whose names were attached to the petition for a writ of mandate and to said assignment of errors to appear and produce and show the authority by which they appeared for Moses Fowler Chase in said cause, and also to produce and prove the authority by which they filed said records in this court. This rule was entered, and on the day that it was made returnable said attorneys appeared and, respectively, filed affidavits for the purpose of obtaining a discharge of said rule.

The return of Mr. Kumler, representing the law firm of Kumler & Gaylord, is the only one which it is necessary to state the substance of, as it appears from his return that said firm employed all of the other attorneys, and as they claim no other employment in the matter of the proceedings had in this court. The return mentioned, after showing Mr. Kumler's means of judging the mental condition of Moses Fowler Chase from the month of October, 1899, to the month of March, 1900, and expressing the opinion of the affiant that said Chase was of sound mind during that period, states that immediately following an adjudication had by the Tippecanoe Circuit Court on the 21st day of November, 1899, that said Chase was of sound mind, his personal property was turned over to him by the receiver who had had it in charge. It is then alleged "that on or about the 1st day of December, 1899, the appellant, at the law offices of said Kumler & Gaylord, in speaking about said trial and judgment, and the conduct of appellee in aiding, assisting, and procuring said proceedings, and endeavoring to have appellant adjudged to be a person of unsound mind, stated to the respondent, in the presence of Thomas F. Gaylord, that he was fearful and apprehensive that said appellee would not be satisfied with said judgment of said court adjudging him to be of sound mind, and would thereafter endeavor by like or other means and proceedings to trouble and bother him, and that he believed said appellee was desirous of having him adjudged of unsound mind for the purpose of acquiring possession and control of his property, and that he (the said appellant) had been greatly annoyed, vexed, and harassed by said proceedings and the consequent notoriety, and was desirous of protecting himself and his property from similar efforts that might thereafter be made by said appellee or others at his expense or procurement, and in his interest, and he thereupon appealed to the respondent, who was then and there the partner of Thomas F. Gaylord, as aforesaid, in the presence of said Gaylord, to protect him and his estate in the event that he should be further troubled by said appellee by any like or similar proceedings, and appellant then and there employed said respondent and Thomas F. Gaylord, as such firm, as his attorneys at law, to protect him and his said estate, and to resist to the utmost, in any and all courts, any proceedings that might thereafter be brought by said appellee, or anyone at his instance or on his procurement, for such purpose, and said appellant then and there spoke of the fact that four law firms had been employed by his father, the appellee, in said proceedings, and then and there requested and authorized said firm, if, in their judgment they should need any legal assistance or help to resist any action or proceedings that might be brought by said appellee, or others in his interest, for the purposes aforesaid, to employ such assistance.

"Respondent further shows that on one or two occasions during the months of January and February, 1900, and particularly in the last interview that this respondent had with appellant shortly prior to his leaving the city of LaFayette with the ultimate purpose of going to and sojourning in Europe for several years, he again called the attention of respondent and Thomas F. Gaylord to the fact that he was apprehensive and troubled about the conduct of said appellee in the future, in reference to his pursuing him further, and attempting to get control of his person and property by the means aforesaid, and again, then and there, requested said respondent and Thomas F. Gaylord to protect his interests in that respect, and to appear for him and defend and protect him in all courts in any action that might be brought by appellee, or anyone in his interest, having that end in view, and then and there also gave the said Kumler & Gaylord full authority to appear for him generally in all of his matters. And respondent says that since said time, and up to the time of the beginning of the proceedings in this cause, he and the said Thomas F. Gaylord, have acted as counsel for appellant in different matters in the courts of Tippecanoe county, and other matters in said county, and have had in their office business matters of said appellant, as counsel for him, continuously from said employment to the present time, other than the case at bar. Respondent shows that at the periods aforesaid, when appellant sought the employment of respondent and the said Thomas F. Gaylord, as his counsel, they, as such firm, accepted said employment, and then and there agreed with and promised said appellant that they would, in the event any of the contingencies should arise, appear for him and defend him against such proceedings, and would, if necessary, employ counsel to assist them in such matters." It is also alleged in said return that said contract of employment has not been recalled or revoked in any way, but is still subsisting; and it is alleged, on information and belief, that prior to and during the month of March, 1903, said Moses Fowler Chase had full possession of his mental faculties. Other matters are alleged in said return, but it is unnecessary to exhibit them in this opinion.

The question now before us is whether said records should be stricken from our files, and this consolidated cause be dismissed, on the theory that the attorneys against whom said rule issued were not authorized to take the steps by virtue of which said cause appears upon our docket. In passing upon the matter we have regarded ourselves at liberty to examine the records which have been filed, for the purpose of ascertaining such additional facts as are pertinent to our inquiry.

The petition upon which the trial in the Benton Circuit Court was had was filed by Frederick S. Chase, the father of Moses Fowler Chase, in the Tippecanoe Circuit Court, on the 16th day of April, 1903. On the same day the latter was served with summons to appear on the 27th day of April, 1903. On the date last mentioned, the clerk of said court filed an answer to the petition, as required by statute, and the prosecuting attorney of the Tippecanoe Circuit Court also filed answer by way of general denial, to said petition. It appears that this same controversy, relative to the right of attorneys to appear for Moses Fowler Chase under the agreement made with Kumler & Gaylord, was raised in the Tippecanoe Circuit Court, and that said court, after considering affidavits and counter-affidavits upon the subject, placed the defense in the hands of the prosecuting...