City of Hammond v. Darlington

• Decision Date: 05 December 1958
• Docket Number: No. 18780,18780
• Citation: 154 N.E.2d 402
• Parties: CITY OF HAMMOND, Indiana, Appellant, v. Jay E. DARLINGTON, Owen W. Crumpacker and Edward J. Ryan, Appellees. *
• Court: Indiana Appellate Court

Page 402

154 N.E.2d 402

CITY OF HAMMOND, Indiana, Appellant, v. Jay E. DARLINGTON, Owen W. Crumpacker and Edward J. Ryan Appellees. ^*

No. 18780.

Appellate Court of Indiana, In Banc.

Dec. 5, 1958.

Dissenting Opinion Dec. 8, 1958.

Rehearing Denied Dec. 31, 1958.

James J. Richards, Hammond, Alan W. Boyd, Charles M. Wells, Indianapolis, Barnes, Hickam, Pantzer & Boyd, Indianapolis, of counsel for appellant.

Myers, Northam & Myers, Indianapolis, Crumpacker, Gemberling & Enslen, Hammond, James Northam, Indianapolis, Owen W. Crumpacker and Theodore Gemberling, Hammond, for appellees.

BOWEN, Judge.

This cause involves an appeal from a judgment of the Porter Circuit Court by which judgment the appellees were awarded judgment for $250,000 for their services as attorneys, and $15,000 for expenses incurred by the appellees in an action brought by appellee Jay E. Darlington as a taxpayer of the City of Hammond against such city and others to enjoin the enforcement of and to have set aside certain judgments against the City of Hammond on the ground that they were procured through fraud.

The appellees filed a motion asking that the appeal in this cause be dismissed, or in the alternative that the judgment in the court below should be affirmed. To this the appellant filed a motion to delete the record date of May 2, 1956, of filing appellees' motion to dismiss the appeal and to strike appellees' said motion and brief, and to set aside the order theretofore entered. This motion of the appellant was overruled by this court.

Thereafter, this court deferred action on appellees' motion to dismiss or in the alternative to affirm until this cause was finally briefed. This cause was finally briefed, oral arguments were had, and the cause has now been fully considered by this court upon the record, briefs, oral arguments and notes thereto of the respective parties.

This cause came to this court originally as an appeal from a judgment in an action for an injunction filed by the appellee Darlington as a taxpayer of the City of Hammond, Indiana, in his own behalf, and on behalf of the other taxpayers of the City of Hammond, Indiana, alleging that certain judgments totaling 124 in number in the sum of $958,000 were procured by fraud on the trial courts, in which fraud the attorneys for the defendant judgment holders were alleged to have colluded with the then defendant officials of the City of Hammond, Indiana, to the damage of the taxpayers of such city. The lower court held in favor of the appellee Darlington, and on an appeal to this court, Gilkison v. Darlington, 1952, 123 Ind.App. 28, 106 N.E.2d 473, this court affirmed the part of the judgment that each and all of those certain purported judgments against the City of Hammond which were listed and designated in Finding No. 1, and which were further described in the other findings therein, were void, and remanded the case to the trial court with instructions to restate its conclusions of law to conform with such opinion in Gilkison v. Darlington, supra, and that it enter judgment setting aside all of the purported judgments so found to be void.

After the cause was remanded to the trial court with instructions, such trial court restated its conclusions of law and rendered judgment on June 23, 1954, as follows:

'Restated Conclusions of Law

'Upon the special findings of fact herein, the court now restates its conclusions of law to be as follows:

'1. Each and all of those certain purported judgments against the City of Hammond which are listed in Finding No. 1 and which are also further described in the other findings herein, are void, because of fraud upon the courts in their procurement.

'2. Plaintiff, as a taxpayer of the City of Hammond, is entitled to maintain these consolidated actions as class representative plaintiff against each and all of defendants herein, on behalf of the plaintiff class which is composed of all the taxpayers of said City, and for the benefit of the City. Said class exists in law, and all of its members have a common and general interest in this action and the subject matter and questions therein. Plaintiff is a duly qualified member and representative of said class.

'3. On the incidental and ancillary issue between plaintiff and the City relative to his reimbursement for his expenses incurred on its behalf in this action, he is entitled to such reimbursement, but the reasonable amount and extent thereof has not yet been determined by the court. (Our emphasis.) The court should defer action thereon and retain jurisdiction thereof until such determination has been made. Said matter on which action is thus deferred is an ancillary issue in this cause, between the plaintiff and the defendant City only, and does not affect in any way any of the issues herein adjudicated between the plaintiff and each and all of the other defendants, and does not affect the finality of said adjudication as to them or as to the City.'

'Judgment

'Upon the restated conclusions of law herein, and in conformity and compliance with the opinion and mandate of the Appellate Court of Indiana in this cause, it is now fully and finally Ordered, Adjudged and Decreed as follows:

'That each and all of those certain purported judgments against the City of Hammond which are listed and designated in Finding No. 1 and which are further described in the other findings herein, are void; and all of said purported judgments are hereby set aside.

'With reference to the separate and incidental issue in this consolidated cause between the plaintiff and the defendant City of Hammond relative to the plaintiff's reimbursement by said City for his reasonable expenses, including attorney fees, incurred in the plaintiff's prosecution of this action for said City's benefit, said issue having been submitted for trial as an incident to the general submission of this cause on September 8, 1947, and part of plaintiff's proof having been made thereon as an incident to the trial of the other issues in this cause, it is now Ordered that the trial of said separate and ancillary issue is now continued for further evidence thereon, but that this shall in no way effect any of the issues herein adjudicated between the plaintiff and each and all of the other defendants, and shall in no way affect the finality of the foregoing judgment as to said defendants or as to said city.'

This judgment is entered by the trial court as to substance and form was not questioned at this time, and thereafter, on July 3, 1954, the attorney for the City of Hammond, appellant herein, entered into an entry and stipulation as follows:

'Comes now Palmer C. Singleton, Jr., attorney, and appears for the City of Hammond, and its officials.

'Comes now plaintiff, by E. J. Ryan, and Owen Crumpacker, attorneys for plaintiff, and by agreement of parties hearing and trial pending on ancillary proceedings, at issue between plaintiff and defendant, City of Hammond, on determination of amount of plaintiff's attorney fees, and expenses is now resumed for further hearing and trial. (Our emphasis.)

'Evidence is now heard and there being insufficient time to complete said hearing and trial and to determine said issue on this the last day of the present term, said hearing and trial is now continued to July 8, 1954, which is the earliest available date in vacation.'

Entries were made continuing the cause for further evidence on the court's own motion on July 8, 1954, and by agreement of the parties on September 7, 1954, and on the court's own motion on October 9, 1954. The cause was resumed on November 6, 1954, and further evidence was offered by the appellees herein and the cause adjourned to December 1, 1954. By entry made November 16, 1954, the cause was continued upon the defendant City's request, and upon January 14, 1955, the cause, by agreement of the parties, was set for resumption of evidence on February 8, 1955. Such hearing was resumed on February 8, 1955, on which date plaintiffs concluded their evidence. On February 9, 1955, the defendant City introduced its opposing evidence and both sides rested. Motions by the City for a finding in its favor, both at the close of plaintiff's evidence and at the close of all the evidence, were overruled by the trial court and the court thereafter, on February 9, 1955, entered its conclusion and judgment as follows:

'Arguments of counsel are now heard on ancillary proceedings to determine the amount of attorney fees and expenses. The court after being duly advised in the premises now finds for the petitioners, Jay E. Darlington, Owen Crumpacker, and E. J. Ryan, attorneys, and for plaintiff, Jay E. Darlington, herein, that they should recover of and from the defendant, City of Hammond, Indiana, the sum of $250,000.00 for their services as attorneys for the plaintiff herein, together with the sum of $15,000.00 as expenses incurred by them in this case, making a total of $265,000.00, with interest at 6% from date.

'It Is Therefore Ordered, Adjudged and Decreed by the court that the plaintiff, Jay E. Darlington, Owen Crumpacker, E. J. Ryan, attorneys and plaintiff Jay E. Darlington, do have and recover of and from the defendant, City of Hammond, the sum of $250,000.00 for their services as attorneys for the plaintiff herein, together with the sum of $15,000.00 as expenses incurred by them in this case, making a total of $265,000.00, with interest at 6% from date.'

Thereafter the appellant City of Hammond filed its motion to strike the restated conclusion of law No. 3 on the grounds that the decision of the court was not sustained by sufficient evidence and was contrary to law. The trial court overruled each of these motions and this appeal followed.

The appellant's praecipe for transcript reads as follows:

'The Clerk of the Porter Circuit Court is hereby requested and directed to prepare and certify for use on appeal by the defendant, City of Hammond, Indiana, to the Appellate Court of Indiana, a...