Julian v. State

• Citation: 23 N.E. 690,122 Ind. 68
• Parties: Julian et al. v. State.
• Decision Date: 05 February 1890
• Court: Supreme Court of Indiana

122 Ind. 68

23 N.E. 690

Julian et al.

v.State.

Supreme Court of Indiana.

Feb. 5, 1890.

Appeal from superior court, Marion county; N. B. Taylor, D. W. Howe, and L. C. Walker, Judges.

Julian & Julian, for appellants. L. T. Michener, Atty. Gen., and John H. Gillett, for the State.

Olds, J.

This is an action for the value of appellants' services as attorneys in and about the prosecution of certain actions on behalf of the state to recover real estate belonging to the state. The plaintiffs, the appellants, filed their complaint in the Marion superior court in this case. It is alleged in the complaint that, the governor and other state officers of the state of Indiana having wholly failed for nearly 20 years prior to October, 1879, to institute proceedings to recover certain lands described in the complaint, or to take steps to protect the rights of the state, on said day Thomas W. Woollen, then the attorney general of the state of Indiana, as such officer, and for and on behalf of the state, with the approval of the governor, secretary, auditor, and treasurer of state, employed the appellant Jacob B. Julian as an assistant to said attorney general, and to have the main charge and to do most of the work in the examination of the title of the state to many tracts of land of great value, situate in Newton county, in said state of Indiana, and in the prosecution of the necessary suits to recover and quiet her title in and to the same. The said John F. Julian, appellant, being a partner of said Jacob B. Julian, with the knowledge and approbation of said attorney general and his successors in office, and the officers of state aforesaid, shared with said Jacob B. in the labors incident to said employment, and is entitled to share equally in the compensation; and the said Jacob B. has executed and delivered to said John F. an assignment of the one-half of the compensation due and to become due for said services, a copy of which is set out in the complaint. That the services to be rendered under said employment were to and for the state of Indiana, and consisted not only in the examination of the state's title to said several tracts of land of great value in Newton county, in said state, but in the preparation for the institution of a great many suits to recover the same, and in the actual commencement and prosecution of the same, and other services incident thereto, in the maintenance of the title of the state to said lands; said lands consisting of 8,000 acres in what was the bed of Beaver lake, in said county of Newton, of the value of $120,000. That it was greatly to the interest of said state, not only to sue for and recover said lands, but to do so without delay, as otherwise the statute of limitation would bar the recovery of all of said land. That the business of said attorney general was in such shape, and he was so busily engaged in the discharge of other official duties, that he could not personally attend to it, and that, in the absence of help, said land would have been lost to the state. That the conditions existing as aforesaid required the employment of a competent lawyer as an assistant, or in some manner securing such person to take his place under some contract or on some terms, the said Jacob B. Julian, a lawyer of long experience, being agreed upon to occupy this position and discharge the said dutes under the agreement between him and said Woollen, the same being necessary, under the circumstances as herein stated, in protecting the rights of the state, as well as the further reason that, in the nature of the litigation, it could not be closed during the official term of said Woollen, or for several years thereafter, for which reason none of the attorney generals of the state were willing or disposed to spend time in attending to such cases; and that by reason thereof the public interests demanded that some one capable of protecting the rights of the state be intrusted with this duty, and familiarize themselves with the facts and the law as to become competent and efficient in the prosecution of such actions and doing such business. That his employment involved the inquiry into and prosecution of about 30 cases in the courts of Newton county, at least 125 miles from the city of Indianapolis, where the office of the attorney general is situated, and the business transacted; and that during more than nine months of each year it was not possible for the attorney general to take charge of the business, and give it the necessary attention, and it was therefore necessary to employ a competent lawyer to take charge of such business relating to such real estate. Whereupon said Jacob B. Julian was retained and contracted with by said attorney general, in which contract all the other state officers concurred, and such contract is a reasonable one, providing compensation to be paid said Julian, and securing to the state her rights. And it is averred that the compensation to be paid said Julian, as expressly agreed upon between said Julian and Woollen, as attorney general acting for the state, “was not to exceed ten per cent. of the value of the lands recovered, or of the proceeds thereof, when sold. Within that limit was to be the value of the services that should be performed, which plaintiffs allege was at least ten per cent. of the value of the lands recovered, or the proceeds thereof when sold, amounting, in either case, to at least twelve thousand dollars,($12,000.)” Then follows a detailed statement of the services performed in preparing the case, commencing and prosecuting the cases in the courts, laboring with legislators to prevent the passage of a bill to quiet the claimant's title to the land during several sessions of the legislature of the state, and that one case was finally prosecuted to final judgment, and an appeal taken to the supreme court of the state, and decision given in the case which effectually settled the controversy in favor of the state and of its ownership to the land. It is further averred that the defendant, after knowing of such recovery through the plaintiffs' efforts, abandoned, through the legislature as aforesaid, all claim to the said lands, and refused to contend for her rights, or to pay to the plaintiffs the amount due the plaintiffs herein demanded, or any part of it, or the damages resulting to them for the violation of said contract; and that the lands involved in said several suits above mentioned are worth the sum of $120,000, and would have sold at any time within the last 10 years for that amount, 10 per cent. of which is the limit of plaintiffs' demand, which, including the cash expended at divers times, they put at $12,000, for which sum they demand judgment. A demurrer was filed to the complaint, for cause that the complaint does not state facts sufficient to constitute a cause of action, which demurrer was sustained by the court, and exceptions reserved, and the ruling assigned as error.

An act of the legislature approved March 9, 1889, authorizes any person or persons having or claiming to have a money demand against the state of Indiana, arising at law or equity, express or implied, accruing within 15 years from the time of the commencement of the action, to bring suit against the state therefor in the superior court of Marion county, Ind., by filing complaint, etc. This act authorizes the bringing of this suit, as it was brought in the Marion superior court. The question presented is as to whether or not the complaint states facts constituting a cause of action in favor of the plaintiffs against the state. The theory of the...