Curran v. Abbott
| Decision Date | 12 June 1895 |
| Docket Number | 17,287 |
| Citation | 40 N.E. 1091,141 Ind. 492 |
| Parties | Curran v. Abbott et al |
| Court | Indiana Supreme Court |
From the Jefferson Circuit Court.
Judgment reversed, with instructions to overrule the demurrer to the complaint.
C. A Korbly and W. O. Ford, for appellant.
C. E Walker, A. D. Vanosdol and H. Francisco, for appellees.
Appellant brought this action against appellees. The complaint is in substance as follows:
That in 1891 Carrie Curran, appellant's daughter, was a minor and unmarried; that appellees were the owners and proprietors of a newspaper in Madison, Indiana, and published in said newspaper a libel of and concerning said Carrie Curran, for which she brought an action against the appellees in the Jefferson Circuit Court, and asked to be allowed to prosecute the action as a poor person, which leave was refused by the court; that appellant and his daughter resided in Ripley county, Indiana, and he was thereupon appointed guardian of his daughter by the Ripley Circuit Court, and on motion was allowed, by the Jefferson Circuit Court, to be substituted in her said action as plaintiff, and as such filed an amended complaint, on which there was issue joined, a trial had and judgment rendered, on June 22, 1891, in favor of appellant, guardian of Carrie Curran, for $ 1,500 and costs against appellees; that she arrived at the age of twenty-one years on the 11th day of March, 1892, and afterwards, in 1892, married one Clel Cain, an adult, who was then a resident of the State of Kentucky, where he and the said Carrie removed and have ever since resided; that appellant prosecuted said action for libel in his own name, as such guardian, to final judgment as aforesaid, and employed Nicholas Cornet, an attorney at law, to prosecute the same, and paid him a retainer fee of ten dollars, and agreed to pay him a further amount equal to fifty per cent. of the judgment that might be recovered by him in said suit, out of the sum so recovered, out of which sum said Cornet agreed to pay all the attorneys' fees for such associate counsel as he might select to assist him in said suit; that appellant became liable to pay said Cornet for his services and the services of his associate counsel, out of the proceeds of said judgment, the sum of $ 750, with six per cent. interest from the rendition of said judgment; that said amount was a reasonable compensation for the services which he and his associate counsel rendered; that said services were necessary to the prosecution of said suit, and all of the other expenses incurred by appellant were reasonably necessary in the prosecution of said suit and in the proper discharge of his duties as such guardian, and such charges are reasonable; that besides the ten dollars paid said Cornet, appellant has paid out and expended, of his own money, in the prosecution of said suit, twenty-five dollars; that he spent eight days away from home to attend to matters in connection with said action, and four days in taking out letters of guardianship and attending to matters connected therewith, and his time was reasonably worth two dollars per day; that he incurred costs in the Ripley Circuit Court amounting to two dollars and fifteen cents, and a further sum of one dollar clerk's fees and five dollars will be required to pay an attorney to make a final account, making eight dollars and fifteen cents that will be required to close up and settle said trust.
Said ward, after she became of age, did not have an accounting with appellant, neither did her husband, either alone or with his wife, have such accounting, and they have at all times since their intermarriage been out of the jurisdiction of the State of Indiana. Said appellees, while said cause was pending in this court on appeal, well knowing that appellant, as guardian, had no assets or means whatever in his hands with which to pay his attorneys' fees, costs and expenses aforesaid, and desiring to cheat and defraud him and them out of said fees and costs, sent one Chapman, one of appellees, to Kentucky to see said Carrie and her husband for the purpose of inducing them to assist in accomplishing their desires, and said appellee, for the purpose of working on the fears of said Carrie and her husband, represented that said cause would be reversed, because it was recovered by this appellant and not in the name of said Carrie, by her next friend. Said appellee knew that, by the law of the State of Kentucky, whatever money he paid said Carrie would at once vest in her husband, and intending to cheat and defraud appellant, and without his knowledge or consent, or the knowledge or consent of his attorney, offered to pay said Carrie $ 550 if she and her husband would enter full satisfaction of record of said judgment recovered by appellant as aforesaid, and said Carrie and her husband, well knowing the object and intent of appellees to cheat and defraud appellant, and his attorneys accepted said offer, and thereupon appellees, by said Chapman, paid her $ 550, and she and her husband on December 8, 1892, executed and delivered to said appellees a satisfaction piece and release of said judgment and all claims and causes of action to date thereof. Said appellees caused said satisfaction piece and release to be attached to the margin of the order book on the page on which said judgment was entered. Appellees afterwards procured the clerk of the court to procure an ex parte order from the court forbidding the clerk to issue an execution on said judgment against said appellees in favor of appellant, and the same was procured and entered of record, without any notice or service of process on appellant, and the same is coram non judice and void. Appellant has no means or property belonging to said Carrie, his late ward, out of which he can pay said fees, costs and expenses; that at the time of his appointment as such guardian his said ward had no estate or property except the said claim against appellees; that no assets or property of said ward have ever come into his hands as such guardian, and said ward has no estate or property whatever in this State or elsewhere except as stated; that he is entitled to have said fees, costs and expenses paid out of said judgment, which was recovered by him in his own name as guardian; that appellant has been unable to have any accounting with his late ward or said husband by reason of their being out of the jurisdiction of the Ripley Circuit Court; that he has filed in the Ripley Circuit Court his duly verified account of final settlement with his said ward, in which he has set forth substantially the foregoing facts and demanded that he be allowed all said expenditures and liabilities out of said judgment; that said fees, liabilities and payments are due and unpaid. Prayer that said pretended release and satisfaction be set aside and declared void as against the appellant and he be adjudged to...
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