Kendall v. Kendall

• Decision Date: 14 November 1906
• Docket Number: No. 5,805.,5,805.
• Citation: 79 N.E. 222,39 Ind.App. 80
• Parties: KENDALL v. KENDALL.
• Court: Indiana Appellate Court

39 Ind.App. 80

79 N.E. 222

KENDALL

v.KENDALL.

No. 5,805.

Appellate Court of Indiana, Division No. 2.

Nov. 14, 1906.

Appeal from Circuit Court, Rush County; Vincent Clifford, Special Judge.

Action by Alfred Kendall against Marcus A. Kendall. From a judgment for plaintiff, defendant appeals. Dismissed.

Smith, Cambern & Smith and Megee & Kiplinger, for appellent. Watson, Titsworth & Green, A. J. Ross, and L. B. Ewbank, for appellee.

WILEY, J.

Appellee recovered a judgment below, decreeing that he was the owner of the real estate described in his complaint, the paper title to which was in appellant; and that he was entitled to have the same conveyed to him, subject to a lien in favor of appellant for the sum of $1,777.54. In the decree the court appointed a commissioner to make a deed of conveyance, and directed that such deed be made. Appellee's attorneys filed a lien upon the judgment for $1,000, for their fees. Appellant filed an answer, and a cross-complaint upon which issues were joined. In his cross-complaint, he averred that he was the owner of the real estate in controversy, and asked that his title thereto be quieted. The transcript was filed in this court July 21, 1905, and appellant's brief was filed August 29, 1905. September 6th, following, appellee filed a written discharge of the attorneys who represented him in the court below, and directed the clerk not to receive or file any brief or papers offered to be filed by such attorneys. September 25, 1905, another attorney, under written authority of appellee, appeared in the cause as his attorney, and on October 16th filed a confession of errors. October 19, 1905, appellee's attorneys below filed a petition for leave to appear and defend the appeal, which was granted and they were directed to file brief in 30 days, which they did. This petition was based upon two grounds: (1) That they prosecuted the action below to final judgment, and entered upon the judgment docket a lien for their fees; that appellee has no property out of which to satisfy his creditors, except that involved in this controversy. (2) That appellant, who is the son of appellee, obtained possession of the person of appellee, has since “excluded these attorneys and other friends of appellee from him,” and that upon information and belief said confession of errors was not his voluntary act. This petition was supported by affidavit. July 21, 1906, appellee, by his attorney, filed a motion to dismiss the appeal, upon the ground that since the appeal was taken appellant had applied to the court below for a new trial as of right, and that said motion had been sustained.

The motion to...