McNagney v. Frazer

• Citation: 27 N.E. 431,1 Ind.App. 98
• Decision Date: 15 April 1891
• Docket Number: 92
• Parties: MCNAGNEY ET AL. v. FRAZER, EXECUTOR, ET AL
• Court: Indiana Appellate Court

27 N.E. 431

1 Ind.App. 98

MCNAGNEY ET AL. v. FRAZER, EXECUTOR, ET AL

No. 92

Court of Appeals of Indiana

April 15, 1891

From the Kosciusko Circuit Court.

Judgment affirmed, with costs.

E Haymond, L. W. Royse and P. H. Clugston, for appellants.

G. M Ray and S. J. Worth, for appellees.

OPINION

CRUMPACKER, J.

At the April term, 1889, of the Kosciusko Circuit Court the appellants filed a petition in the nature of an adverse proceeding in said court against the appellees, stating substantially, these facts. We quote from brief of appellants' counsel:

"Prior to the year 1877 one Jacob Boss died in Kosciusko county, Indiana; that Hon. James S. Frazer was duly appointed and qualified as the executor of said decedent's estate, and is still acting as such; that said decedent left surviving him his widow, the appellee Nellie P. Boss, who filed her claim against said estate for a large sum of money upon a number of causes of action; that said executor vigorously contested said claim, and the venue thereof was changed to the Whitley Circuit Court; that at the time of said change appellants were practising attorneys in said court, and had a reputable and fairly successful practice therein; that said claimant employed them as such attorneys to assist in the trial of said cause, agreeing to pay them a reasonable fee for such services as they might render therein, which fee she agreed should be paid out of any judgment recovered in said cause; that said cause was a difficult and important one, and required much time and skill in its preparation and trial; that under said employment appellants did, as attorneys, assist the claimant's other attorneys in the trial of said cause, which services were reasonably worth $ 125; that said claimant recovered in said suit in September, 1877, a judgment of allowance of $ 8,530 against said estate, which, upon appeal, was affirmed by the Supreme Court; that appellants' said services aided and assisted said claimant in recovering said judgment, and that she could not have safely tried her cause in said court without such services; that said sum of $ 125 remains wholly unpaid; that said estate of Boss has never been settled, but is pending in the court below; that said Frazer, executor, has now in his hands more than $ 200 which remains due on the judgment so recovered, and which he is ready and willing to pay in discharge thereof; that said claimant is insolvent, and is endeavoring to cheat and defraud appellants out of pay for their services; that unless they can get relief under said petition they are without remedy."

Wherefore an order was prayed establishing a lien upon the judgment in favor of the appellants for the amount due them, and directing the executor to pay such lien out of the assets of the estate.

The appellees appeared to the petition, filed separate demurrers thereto, which were sustained, and appellants excepted.

Judgment was rendered denying the relief prayed for in the petition, hence this appeal.

Both parties agree that the question of the statute of limitations is presented by the demurrer, as it appears upon the face of the petition that the appellants' claim for services...