Gerdink v. Meginnis, 10266.
| Decision Date | 16 March 1920 |
| Docket Number | No. 10266.,10266. |
| Parties | GERDINK et al. v. MEGINNIS et al. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Superior Court, Vigo County; William T. Gleason, Judge.
Action by Charles A. Stevens against Herbert E. Meginnis. From judgment of dismissal, John W. Gerdink and another, plaintiff's attorneys, having taken exceptions to court's refusal to permit them to prosecute the action for purpose of securing their attorneys' fees, appeal. Affirmed.
John W. Gerdink, Herbert A. Gerdink, Josiah T. Walker, and Felix Blankenbaker, all of Terre Haute, for appellants.
Davis, Moore, Cooper, Royse & Bogart, of Terre Haute, for appellees.
This action was begun by the appellee, Charles A. Stevens, by his attorneys, appellants Gerdink & Gerdink, by filing a complaint in two paragraphs, in said superior court, against the appellee, Herbert E. Meginnis. The first paragraph alleged that said appellee defendant wrongfully persuaded and enticed the wife of said plaintiff to leave her home, and to go and take up her residence with said defendant; that said defendant had been guilty of adultery with the plaintiff's said wife; that plaintiff had thereby lost the society, companionship, and affections of his wife, and had been greatly humiliated and distressed.
The averments of the second paragraph are similar to those of the first, except that there is no averment concerning adultery. There was a prayer for damages in the sum of $15,000.
This complaint was filed August 21, 1917, and was answered by defendant by general denial, the same being filed September 17, 1917. On September 18, 1917, the court made an order against said defendant concerning his appearance at a time and place fixed by the court in said order, to answer under oath concerning the matter alleged in said pleadings.
On September 24, 1917, the said defendant filed in said court his verified motion to set aside said order for his aforesaid examination under oath, and that said action abate and be dismissed, for the reasons in said motion stated, one of the reasons therein stated being “that the plaintiff has requested his attorneys of record to dismiss said cause, and said attorneys have refused and still refuse.” This motion was verified by the affidavit of said plaintiff, Stevens, said affidavit being as follows:
“Charles A. Stevens, being duly sworn, upon his oath says that the matters and things set forth in the motion and plea in abatement herein are true in substance and in fact.
Affiant further says that this affidavit is made without reward or promise of reward from any one, and that the reconciliation between him and his wife was brought about without inducement or promise of inducement from any one; that investigation has convinced him that the charges set out in his complaint against the defendant herein are without foundation in fact, and that he is very desirous that the case be dismissed and the matter finally terminated.”
The appellants, acting ostensibly for the said Stevens, then moved to strike said motion from the files, which being overruled, they filed a demurrer to said motion. Pending the ruling of the court on said demurrer, the defendant Meginnis filed a motion to strike said demurrer from the files, stating in said motion 7 separate and several reasons why the same should be sustained.
Pending a ruling of the court on the last motion the appellants filed their verified petition, asking leave to prosecute the above suit, in the name of said plaintiff, and against said defendant, for the purpose of protecting their interest in said matter, as attorneys for said plaintiff, as to the matter of securing to them their attorneys' fees, and alleging that they had an agreement with said Stevens by which he was to pay them for their said services an amount equal to 50 per cent. of any amount recovered as a result of said suit, for the services of appellants as attorneys therein; that they had done a great deal of labor on said case, investigating the facts and preparing same for trial; that said plaintiff was wholly insolvent, and that they had received no compensation whatever for their services; that the said plaintiff had wrongfully and fraudulently settled his said cause of action, etc.
The court sustained the motion of defendant Meginnis to strike said demurrer to said motion from the files; the court also sustained the motion of defendant Meginnis to dismiss said cause.
After the court had announced that it would sustain said motion to dismiss, and before such judgment was entered, the appellants requested leave to file their answer to said motion to dismiss, which leave was, by the court, refused. The court also refused to permit the appellants to prosecute said suit, in the name of the plaintiff, to final judgment, so that they might secure the fees as attorneys as in their aforesaid motion they had asked.
Judgment was finally rendered, dismissing said cause, at the cost of the said plaintiff. Exceptions were duly taken by the appellants to the several rulings aforesaid, and they have prosecuted this appeal from said judgment, and ask a reversal thereof, on account of alleged errors arising under said several rulings.
The only one of the alleged errors which it will be necessary for us to notice is that relating to the action of the court in refusing permission to the appellants to prosecute this cause to a final judgment, in the name of said plai...
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