Harrod v. State ex rel. Meloy
| Decision Date | 14 November 1899 |
| Docket Number | 2,824 |
| Citation | 55 N.E. 242,24 Ind.App. 159 |
| Parties | HARROD, ADMINISTRATOR, ET AL. v. THE STATE, EX REL. MELOY ET AL |
| Court | Indiana Appellate Court |
Rehearing denied February 20, 1900.
From the Scott Circuit Court.
Affirmed.
J. H Shea, M. Storen and Turner & Orbison, for appellants.
S. B Wells and E. Hough, for appellees.
This was an action upon an administrator's bond against the principal, Columbus B. Harrod, and his sureties, the relators being the heirs at law of the intestate, wherein there was recovered a judgment for $ 1,500. The complaint was in two paragraphs. In the first paragraph, after stating the death of the intestate, Robert F. Meloy, and that the relators were his heirs at law, and showing the appointment of the administrator, and the execution of the bond in the penal sum of $ 4,000, which was exhibited, it was alleged that there came into the hands of the administrator, as such, assets of the estate in the sum of $ 3,550, and of this he converted the sum of $ 1,775 to his own use, and wholly failed and refused, and still failed and refused, to account therefor, although often demanded so to do by the relators.
The second paragraph showed the death of the intestate and the heirship of the relators, and it was alleged that in March, 1895, previous to his death, the intestate recovered a judgment against the Big Four Railroad Company (elsewhere in the pleadings called the Cleveland, Cincinnati, Chicago, and St. Louis Railway Company), in the Jennings Circuit Court, in the sum of $ 4,600, for personal injuries; that the appellant, Columbus B. Harrod, and Thomas C. Batchelor were attorneys for the intestate in that cause, and were to receive as their fee as such attorneys an amount equal to one-half of the amount recovered; that, after the death of the intestate, said Harrod was, on the 25th of November, 1895, duly appointed administrator of the decedent's estate, in the Scott Circuit Court, and executed his bond, etc. (describing it, and making it part of the complaint as an exhibit), and entered upon the discharge of his duties; that as such administrator said Harrod compromised said judgment, for the sum of $ 3,550 cash; that, under the contract of the intestate with said Harrod and Batchelor, they received the sum of $ 1,775 attorney's fees for recovering said judgment, leaving the sum of $ 1,775 in cash in the hands of said Harrod as such administrator; that more than one year had elapsed since the appointment of the administrator; that there were no claims pending against the decedent's estate; that there were no debts due said estate; that the decedent left no real estate; that the administrator had failed to pay into court the money belonging to the estate; that said Harrod, as such administrator, had embezzled and converted to his own use all of the moneys belonging to said estate; that in the Scott Circuit Court, in chambers, on the 22nd of May, 1897, the relators filed a petition with the judge of said court asking that said administrator be required to show cause why he should not make a final report as such administrator at the June term, 1897, of said court; that he failed and refused to answer said petition, and the court, being fully advised in the premises, made an order for him to make final settlement at said June term, 1897, of said court; that he had wholly failed and refused to obey said order to make final settlement and pay into court the money belonging to said estate for the use and benefit of the relators; wherefore, etc.
The appellants answered in three paragraphs. It will suffice for us to notice specially only the third paragraph, in which it was, in substance, shown that on the 1st of October, 1894, and during the life of the intestate, he and Columbus B. Harrod made and entered into a written contract, which is set out in the pleading. It was signed by the intestate and said Harrod, and showed the employment of said Harrod, an attorney, to attend to and prosecute the action against the railroad company, he being given full power in that behalf to sue and prosecute the claim to judgment, and to settle and dispose of the suit and claim by compromise or otherwise; and, to compensate him, the intestate promised to pay said Harrod as attorney's fees an amount equal to one-half of the amount recovered; and to secure the payment of such fee the intestate assigned to him one-half the intestate's claim and an amount equal to one-half of any verdict or judgment he might obtain against the railway company, or an amount equal to one-half the amount recovered by compromise or otherwise. And said Harrod, by the terms of said agreement, accepted the employment and agreed to perform said services on the terms above stated; and said Harrod was further authorized to hire and employ other and additional counsel to aid and assist him in the prosecution of any suit, legal proceedings, adjustment, settlement, or compromise of the intestate's claim against the railway company, but it was stipulated that no further or additional charge should be made against the intestate for such other or additional counsel.
It was further alleged in the third paragraph of answer, that, pursuant to this contract, said Harrod, as such attorney, prosecuted said suit to final judgment in the Jennings Circuit Court, and obtained a judgment in that court for $ 4,600; that thereafter the intestate died, and afterward said Harrod negotiated and effected a compromise of the judgment by the terms of which the railway company agreed to pay $ 3,550; that thereafter said Harrod was appointed administrator of the decedent's estate, as stated in the complaint, and with his co-appellants executed the bond in suit, and as such administrator received from the railway company $ 1,775 belonging to the estate, and retained $ 1,775 as his fee, in accordance with said written contract; that, after the receipt of said sum belonging to the estate, he proceeded to discharge his duties as administrator, paying off all debts of the estate that came to his knowledge and all costs incurred in the management thereof, including a fee of $ 875 due Thomas C. Batchelor for services rendered in the prosecution of said cause at the special instance and request of the intestate; that said Batchelor was employed by the intestate as his attorney to assist in the prosecution of said suit, and was not employed by said Harrod, and the intestate was to pay him an amount equal to one-fourth of whatever amount of damages the intestate might recover in said suit by judgment or compromise; that said Harrod had faithfully performed all the duties and services required of him by the terms of said written contract and as such administrator had faithfully discharged his duties; that he had placed on file a final report, which showed a balance due said estate in the sum of $ 646.11, "which amount the said administrator says is due the said estate, and no more; that said administrator now offers to pay the said amount, so shown to be due, into court, for the benefit of said estate." Said report, dated October 27, 1897, was set out in the pleading, and it was alleged that no objections or exceptions thereto had been filed, and that it was pending the approval of the judge of the court below; and for said sum of $ 646.11 the appellants offered to confess judgment.
The appellees replied, and the court overruled a demurrer to the second paragraph of the reply to the third paragraph of answer. This ruling is assigned as error. In the paragraph of reply thus questioned, the appellees admitted that the intestate and said Harrod, on the 1st of October, 1894 entered into the contract set out in the third paragraph of answer; but it was alleged that on the 29th of December, 1894, said Harrod and Thomas C. Batchelor, an attorney of Jennings county, Indiana, entered into a written contract with the intestate, which, at the time of making it, was intended by said...
To continue reading
Request your trial