Meyer's Estate, In re, 20474

• Decision Date: 15 April 1966
• Docket Number: No. 2,No. 20474,20474,2
• Citation: 215 N.E.2d 556,138 Ind.App. 649
• Parties: In the Matter of the ESTATE of Mary MEYER, Deceased. Wayne O. WIMMER, Appellant, v. Michael MEYER, Jr., Administrator De Bonis Non of Estate of Mary Meyer, Deceased, Appellee
• Court: Indiana Appellate Court

Page 556

215 N.E.2d 556

138 Ind.App. 649

In the Matter of the ESTATE of Mary MEYER, Deceased.

Wayne O. WIMMER, Appellant, v. Michael MEYER, Jr., Administrator De Bonis Non of Estate of

Mary Meyer, Deceased, Appellee.

No. 20474.

Appellate Court of Indiana, Division No. 2.

April 15, 1966.

[138 INDAPP 650]

Wayne O. Wimmer, Elwood, Albert Ewbank, Indianapolis, for appellant.

Paul K. Schrenker, of Schrenker & Anderson, Anderson, for appellee.

BIERLY, Judge.

This appeal was brought originally in the Supreme Court and assigned Cause No. 30688. In an opinion and order by Judge Myers, the cause was transferred to the Appellate Court in accordance with the provisions with the Supreme Rule 2--41, which reads as follows:

'If either the Supreme Court or Appellate Court, in which an original action may be pending, decides that it does not have jurisdiction thereof, and that the other Court does have such jurisdiction an order shall be made transferring the action to the proper Court where it shall stand for hearing and decision as if it had originally been filed therein.'

The appeal was brought by appellant to the Supreme Court on the theory that it rose from an interlocutory decree by the Madison Circuit Court, and hence the Supreme Court did have jurisdiction, pursuant to Burns' Ind.Stat., § 2--3218, 1946 Replacement, Clause 1, which reads as follows:

'An appeal to the supreme court may be taken from an interlocutory order of any circuit, superior or probate court, or judge thereof, in the following cases:

'First. For the payment of money or to compel the execution of any instrument of writing, or the delivery or assignment of any securities, evidences of debt, documents or things in action.'

There appeared a question in the mind of the appellant as to whether the action should have been taken as an interlocutory[138 INDAPP 651] appeal or an appeal from a final judgment. The first sentence of the appellant's argument as stated in his brief reads as follows:

'The appellant has filed this as an interlocutory appeal, however, reserving the question as to whether this is in fact an appeal from a final judgment.'

Judge Myers in his opinion and order held that the petitions for attorney fees up to the date of May 9, 1963, followed by an answer put at issue the allegations contained in said petitions. A trial was held before a special judge who made a finding and entry. Of this the Supreme Court said:

'We hold that the finding and entry of October 14, 1964, constituted a final judgment and was not an interlocutory decree. See Flanagan, Wiltrout and Hamilton, Indiana Trial and Appellate Practice, What constitutes a Final Judgment, Ch. 41, § 2152, p. 18.'

Appellant, in oral argument, admitted the finality in the Supreme Court opinion and order. Pursuant to Burns' Ind. Stat., § 4--214, 1946 Replacement (Supp.), since this cause does not fall within specific classes of appeals which must be taken directly to the Supreme Court, the Appellate Court has jurisdiction of the appeal. The appeal transferred to this court was assigned Cause No. 20474.

We take the liberty of quoting with approval rather extensively from Judge Myer's opinion and order, 211 N.E.2d 305 as follows:

'This is an appeal from a judgment awarding appellant, a practicing attorney, the sum of $5,000 as an additional fee for professional services rendered as attorney to the administrator of the Estate of Mary Meyer, Deceased.

'Appellant claims to have served as attorney for the Estate of Mary Meyer from June 8, 1954, to May 9, 1963. The gross value of this estate was in the neighborhood of $250,000. Michael Meyer, Jr., appellee herein, and William Meyer were appointed as co-administrators thereof on March 19, 1956, in the Superior Court of Madison County. They continued[138 INDAPP 652] to serve as such until June 27, 1957, when they were summarily removed without notice by the Special Judge in the case on his own motion. The Anderson Banking Company was appointed as successor administrator. It accepted the appointment and letters of administration were issued to it. The decision and order of the Superior Court was appelled to this court which reversed the trial court and remanded the proceedings with instructions to set aside the order removing appellee herein as co-administrator and for further proceedings. The date of this court's opinion is October 30, 1961, with rehearing denied on June 25, 1962. Meyer v. Anderson Banking Co. (1962), 243 Ind. 145, 177 N.E.2d 662.

'On July 2, 1956, appellant was allowed $10,950 as attorney fees for services rendered to the estate as of that date. On November 27, 1961, he was allowed $500 for attorney services rendered in the appeal to this court. On the same date, appellant filed his petition for additional attorney fees for professional services furnished between July 2, 1956, and November 27, 1961.

'The Anderson Banking Company, as administrator de bonis non, filed its final report on May 9, 1963, and was replaced by Michael Meyer, Jr., appellee herein, as administrator in accordance with the order of this court. At this time, appellant ceased acting as attorney for the estate and was replaced by Paul E. Schrenker. On October 8, 1963, appellee, as administrator, pursuant to the filing and approval of Anderson Banking Company's final report, filed an answer to appellant's petition for fees, stating that appellant had been amply paid for his services. It is admitted that at all times during its tenure as administrator, Anderson Banking Company had asked for advice from appellant.

'On September 14, 1964, appellant filed a supplemental petition for additional fees for services allegedly rendered since November 27, 1961. Meanwhile, Hon. George B. Davis, Judge of the Hancock Circuit Court, had been selected as [138 INDAPP 653] Special Judge to determine all matters concerning attorney fees. There was a hearing on September 30, 1964, by the court without the intervention of a jury. On October 14, 1964, the following entry was made:

'IN THE MATTER OF THE ESTATE OF MARY MEYER, DECEASED.

'Comes now the Court and being duly advised on the petition for allowance of additional attorneys fees for services rendered by Wayne Wimmer, which petition was filed December 8, 1961 and the supplemental petition for allowance of attorney fees filed September 14, 1964 now finds that the services rendered by said Wayne Wimmer as attorney for the administrator herein an addition to those services for which he has already been paid are of the reasonable value of $5,000, wherefore it is ordered, and adjudged that the administrator shall pay an additional fee to Wayne Wimmer for services rendered by him as attorney for said administrator in the sum of $5,000.00.

'JUDGMENT

'GEORGE B. DAVIS

'Special Judge'

'Appellant filed a motion for new trial on October 21, 1964, which stated generally that the decision was not sustained by sufficient evidence, was contrary to law, and that there were certain irregularities which prevented appellant from having a 'fair trial.'

Appellant, due to the uncertainty as to the ruling of the Supreme Court in determining of the status of the appeal as based on an interlocutory decree or on a final judgment, filed a motion for a new trial following the entry made by the trial court which motion was overruled on the same day it was filed.

'Comes now the appellant, Wayne O. Wimmer, and as and for his assignment of errors in this interlocutory appeal says that there is manifest error in the judgment and proceedings below, prejudicial to the appellant in this:

'1. That the decision of the court is arbitrary and capricious and that the attorney's fee of Five Thousand [138 INDAPP 654] Dollars allowed the appellant and petition was contrary to the evidence and against the preponderance of all of the evidence.

'2. That the decision is contrary to law, as the undisputed evidence was submitted to the Court by the testimony of two qualified and experienced practicing attorneys of the Madison County Bar who testified from their experience and practice, and in accordance with the minimum fee schedule the work and time involved in this estate by appellant, that the minimum additional fee should be from Thirteen Thousand to Fifteen Thousand Five Hundred Dollars, and '3. That the decision of the Court was an abuse of discretion and that the fee of Five Thousand Dollars as allowed was contrary to the evidence submitted and produced by the petitioner-appellant at the hearing that he was entitled to an additional fee of from Thirteen Thousand to Fifteen Thousand Five Hundred Dollars and that such evidence was the only evidence produced and submitted at such hearing as to attorney fees.

'4. That this petitioner-appellant was entitled to recover and did recover, but was awarded substantially less recovery than the facts and evidence showed he was entitled to recover and there was no evidence to sustain the Court's assessment of recover.

'5. That the decision of the Court was an abuse of discretion and was arbitrary and capricious and was contrary to all of the evidence and against the weight of all the evidence.

'6. That in the event that this Court should interpret said decision as constituting a final judgment herein, under the authority of Bahre v. Bahre, recently decided and not officially reported, the appellant herein, as an additional assignment of error, herein avers that the trial court committed manifest error in the judgment proceedings below, prejudicial to appellant in that the trial court erred in overruling the appellant's motion for new trial.

'Wherefore appellant respectfully urges that the judgment below be reversed. R. p. 1--3.'

During the course of the trial evidence was introduced and witnesses were heard on behalf of both parties. In his testimony, appellant asserted he had been the attorney for the [138 INDAPP 655] estate from June 8, 1954 until the date of the filing, and approval on May 9, 1963, of the...