Finney v. Carter's Estate

Decision Date29 February 1960
Docket NumberNo. 19136,No. 1,19136,1
PartiesJerrald O. FINNEY, Appellant, v. ESTATE of George E. CARTER, Deceased, B. Izora Carter, Administratrix, Appellee
CourtIndiana Appellate Court

Jerrald O. Finney, Anderson, pro se.

C. William Byer, Anderson, for appellee.

MYERS, Chief Justice.

This is a claim for attorney fees filed by appllant, Jerrald O. Finney, against appellee, B. Izora Carter, as Administratrix of the Estate of George E. Carter, Deceased. It is alleged that the fees are due and owing because of certain legal services performed by appellant for and on behalf of the decedent during his lifetime, and pertain specifically to two lawsuits brought in the Madison County Circuit and Superior Courts by appellant for the decedent. The claim was denied by the Administratrix and there was a trial on the issues before the Judge of the Madison Superior Court No. 2. Findings and judgment were entered against appellant as to his claim in one lawsuit and judgment was withheld as to his claim in the other. Appellant filed a motion for a new trial in which he stated that the decision of the court was not sustained by sufficient evidence and was contrary to law. The motion was overruled and this appeal followed.

Appellee has failed, or did not see fit, to file a brief in answer to appellant's contentions. We may consider this appeal on its merits even though no appellee's brief has been filed. State of Indiana v. Howe, 1953, 231 Ind. 645, 110 N.E.2d 633. However, such failure on the part of appellee is tantamount to a confession of error, and this court may reverse if appellant's assignment of errors and brief make an apparent or prima facie showing of reversible error. Mucker v. Public Service Commission, Ind.App.1959, 157 N.E.2d 308.

Appellant's assignment of errors contains nine specifications of error, eight of which are grounds for motion for new trial. Such independent assignments of error present no question. Flanagan, Wiltrout and Hamilton's Indiana Trial and Appellate Practice, § 2386, Comment 2, Page 156. The only specification which we will consider is the charge that the court erred in overruling appellant's motion for a new trial.

Only one of the alleged errors stated therein presents any question, namely, that the decision of the court is contrary to law. The findings were negative to the appellant. Since he had the burden of proof, he cannot challenge the insufficiency of the evidence to sustain the findings. City of Angola v. Hulbert, Ind.App.1959, 162 N.E.2d 324. Thus, the only question before us is whether appellant's assignment of errors and brief make a prima facie or apparent showing that the decision of the court is contrary to law.

The facts as revealed by the record show that appellant, a practicing attorney, was employed by George E. Carter on or about July 23, 1954, to prosecute an action to set aside a deed against one Gladys A. Wampole, who claimed title to five parcels of real estate in Anderson, Indiana. Carter and Gladys A. Wampole were brother and sister and the sole heirs of Alvah R. and Maggie A. Carter, both of whom had died intestate. The deed in question purported to be a conveyance from Alvah R. Carter and Maggie A. Carter to their daughter, Gladys A. Wampole, of all such real estate.

On July 23, 1954, Carter agreed in writing to pay appellant 'a sum equal to 45% of any property or property interest recovered in a suit to set aside a certain purported deed to Gladys Wampole on 8/8/49 from Alvah R. Carter and Maggie A. Carter. No sum due except retainer unless recovery is made.' This was signed by Carter. (Exhibit No. 1.)

On July 24, 1954, appellant filed a suit to set aside the deed in the Madison Circuit Court, Alleging that the deed was a forgery and had been procured by fraud and duress. Following this, many pleadings were filed by the parties until finally the cause was put in issue by an answer which was filed to plaintiff's fifth amended complaint on December 5, 1955. The court proceedings are reflected in appellant's Exhibit No. 25, which is the docket sheet of the Madison Circuit Court for that action.

In the meantime appellant had taken the conditional examination of Gladys A. Wampole and had employed the services of a handwriting expert, who came forth with an opinion that the signature of Alvah R. Carter on the deed could be a forgery.

In January, 1956, the attorney for Gladys A. Wampole made an offer to compromise and settle the lawsuit. This was directed to appellant as attorney for Carter and was accepted. It involved the conveyance of two of the lots in question to Carter. The compromise was approved by the Madison Superior Court on behalf of the estate of Maggie A. Carter, which was in process of administration there. Gladys A. Wampole repudicated this agreement and refused to convey the lots pursuant to the compromise. On April 25, 1956, appellant dismissed the suit to set aside the deed, and the following day he filed in the Madison Superior Court No. 2 an action for specific performance on behalf of Carter as plaintiff, against Gladys A. Wampole and her husband, seeking to enforce the compromise agreement. This was docketed as Cause No. 2S-56-180. The docket sheet of the Madison Superior Court No. 2 for that cause shows that there was an oral argument, and that proof of notice to take the deposition of Gladys A. Wampole's attorney, who had represented her in the action to set aside the deed, was filed. This deposition was subsequently taken. The suit was venued to the Grant Circuit Court where it was still pending at the time this cause on appeal was tried.

About the first of March, 1957, appellant was required to absent himself from Indiana because of illness in his family, and to stay away for long periods at a time. Previously, he had requested an attorney in Anderson to act as associate counsel. This attorney advised Carter of appellant's absence, and wrote him that he would handle matters until trial, at which time appellant would personally be present to try the case. However, Carter wrote appellant a letter discharging him as his attorney on the ground that he had no authority to place the litigation in the hands of the associate counsel, and requested his file. Thereafter Carter died and appellant filed his claim for fees in the estate.

At the trial of the claim, the only evidence presented was that introduced by the appellant. Appellee made no effort to defend the claim, except that her attorney was present and cross-examined appellant's witnesses. Appellee's attorney took the stand, at which time most of the documentary evidence was introduced by appellant. There were 62 exhibits placed in evidence. These included 22 pleadings, 26 letters, and two depositions. He admitted there was a pleading indicating that a settlement had been reached between Carter and Gladys A. Wampole early in 1956.

A disinterested attorney testified that the reasonable value of appellant's services was worth at least $1,500 in the matters involved.

The associate counsel testified that Carter had tried to employ him individually after discharging appellant, but that he had refused to act for him.

In appellant's claim as filed, it was stated that he had received a retainer fee from Carter in the sum of $45.

The findings of the court and judgment read as follows:

'Comes now the claimant, Jerrald O. Finney, in person and acting as his own attorney, and comes now the Administratrix of the Estate of George Carter, deceased, in person and by her attorneys, Byer and Gaus;

'And this cause being at issue upon the claim of Jerrald O. Finney heretofore filed herein and on rejection thereof by the Administratrix and on the answer of the Administratrix denying said claim 'And the parties having waived trial by jury, cause is submitted and evidence heard and concluded on the 25th day of November, 1957;

'And the plaintiff's evidence having been commenced and concluded, the plaintiff now...

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4 cases
  • Kizer v. Davis
    • United States
    • Court of Appeals of Indiana
    • November 16, 1977
    ...services rendered by him to a client. See French v. Cunningham et al (1897), 149 Ind. 632 (49 N.E. 797); Finney v. Estate of Carter, etc. (1959), 130 Ind.App. 381 (164 N.E.2d 656). If the application of this well recognized rule were fully dispositive of the issues, this case would be resol......
  • Hill v. Hill, 20269
    • United States
    • Court of Appeals of Indiana
    • February 10, 1965
    ...and the motion to reverse is denied. State of Indiana v. Howe (1953) 231 Ind. 645, 110 N.E.2d 633; Finney v. Estate of Carter, etc. (1960) 130 Ind.App. 381, 164 N.E.2d 656; Flanagan, Wiltrout and Hamilton, Indiana Trial and Appellate Practice, Sec. 2681, (including 1963 Pocket Part), and au......
  • Herr v. Carter Lumber, Inc.
    • United States
    • Court of Appeals of Indiana
    • June 24, 2008
    ...challenge this finding. 2. Herr also relies upon French v. Cunningham, 149 Ind. 632, 49 N.E. 797 (1898), and Finney v. Estate of Carter, 130 Ind.App. 381, 164 N.E.2d 656 (1960). In French, the Indiana Supreme Court held, in part: "It is well settled that, where the complete performance of a......
  • Bundy v. Concrete Ready-Mix Co., READY-MIX
    • United States
    • Court of Appeals of Indiana
    • May 19, 1960
    ...on the merits. However, this appeal may be considered on the merits even though appellee has not filed a brief. Finney v. Estate of Carter, Ind.App.1960, 164 N.E.2d 656. State of Indiana v. Howe, 1953, 231 Ind. 645, 110 N.E.2d 633. Failure by appellee to file such brief may warrant a revers......

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