Olczak v. Marchelewicz

• Decision Date: 15 February 1934
• Docket Number: No. 14750.,14750.
• Citation: 188 N.E. 790,98 Ind.App. 244
• Parties: OLCZAK v. MARCHELEWICZ.
• Court: Indiana Appellate Court

98 Ind.App. 244

188 N.E. 790

OLCZAK

v.MARCHELEWICZ.

No. 14750.

Appellate Court of Indiana, in Banc.

Feb. 15, 1934.

Appeal from Marshall Circuit Court; Albert B. Chipman, Judge.

Action by Anthony Olczak against Peter Marchelewicz. From a judgment for defendant, plaintiff appeals.

Affirmed.Lauer & Dexter, of Plymouth, and Anthony Olczak, of South Bend, for appellant.

Orie Parker, of South Bend, for appellee.

Peter Marchelewicz, pro se.

SMITH, Judge.

[1] Appellee has failed to file a brief in this cause, but we will consider the questions presented in appellant's brief, as the court in its discretion may do. Hueseman v. Neaman (Ind. App., 1933) 187 N. E. 696, and cases there cited.

This case was determined upon the third paragraph of appellant's complaint, to which appellee filed an answer in two paragraphs. The complaint seeks to recover attorney's fees alleged to be due appellant from appellee upon a contract between them, whereby appellant was employed by appellee as his attorney to bring and prosecute an action on behalf of appellee for damages growing out of an automobile collision, and agreed to pay him a sum equal to one-half the amount of damages procured either in settlement or by judgment. The complaint further alleges that, after appellant brought action upon the claim for appellee, he obtained an offer of settlement for the sum of $200 which he communicated to his client, the appellee, which offer was refused; that, thereafter, in the month of September, 1927, the appellee made a settlement with the defendant in said action without the knowledge of appellant for a sum not less than $200. Appellant sues upon the agreement, for $100 for attorney's fees, and sets up that said $200 received by the appellee in settlement became impressed with an equitable lien in favor of appellant for services in the sum of $100; and then charges that the appellee made said settlement for the purpose of defrauding appellant, and converted the proceeds of the settlement to his own use; and asked judgment in the sum of $100.

To this complaint, appellee filed an answer in two paragraphs: (1) General denial; (2) setting up his discharge in bankruptcy in the United States District Court in the Northern District of Indiana; that the claim sued upon by appellant had accrued and was properly scheduled in the inventory as a debt; that on the 29th day of September, 1928, appellee was discharged by the United States District Court in bankruptcy, and thereby discharged from liability upon the claim of appellant.

To this second paragraph of answer, appellant filed a demurrer with memoranda raising the question that the claim of appellant is based upon conversion, and that appellant had an equitable lien for attorney's fees in the sum of $100, and that his claim against appellee is not one that can be discharged under the Bankrupacy Act, § 17, specification 4, title 11 USCA, p. 150, § 35(4).

The part of the statute relied upon by appellant is as follows: “A discharge in bankruptcy shall release a bankrupt from all of his provable debts, except such as * * (fourth) were created by his fraud, embezzlement, misappropriation, or defalcation while acting as an officer or in any fiduciary capacity.”

The court overruled this demurrer and appellant abided the ruling and refused to plead further. Thereupon, the court rendered judgment as upon default against appellant, and that “plaintiff” take nothing by his complaint. The only error properly assigned and relied upon is the overruling of this demurrer.

The question presented is, Can the claim of appellant be discharged by the Bankruptcy Act under the section above-quoted and is the answer sufficient to bar the action?

Appellant contends that his claim is one that is not subject to discharge under the Bankruptcy Act, supra, and, hence, the answer does not bar the action.

[2] Under the rule, in the absence of an appellee's brief, counsel for the appellant must make a prima facie showing of reversible error. Bryant et al. v. School Town of Oakland City et al. (1930) 202 Ind. 254, 171 N. E....