Pelkey v. Strom, 19362

Citation187 N.E.2d 753,135 Ind.App. 163
Decision Date13 February 1963
Docket NumberNo. 2,No. 19362,19362,2
PartiesJosephine PELKEY, Administratrix De Bonis Non of the Estate of Agnes Kruzick, Deceased and Josephine Pelkey, Individually, Appellants, v. Oscar STROM, Appellee
CourtCourt of Appeals of Indiana

Nichols & Nichols, Knox, for appellants.

Strom & Whitted, Gary, for appellee.

MOTE, Presiding Justice.

This is an appeal from the Starke Circuit Court. The evidence produced in the prolonged litigation presents the following situation: The estate of Agnes Eyke Kruzick, deceased, was opened shortly after her death on February 24, 1940, and her surviving husband, John Kruzick, was appointed administrator. He continued to serve as administrator until November 5, 1942, on which date he filed a current report and resignation. Charles Pelkey, son of the deceased, was appointed as successor personal representative, with appellee serving as his attorney. Charles Pelkey died, and his wife, Josephine Pelkey, was appointed administratrix on April 16, 1955. Appellee continued serving as such attorney until September 10, 1955, at which time Josephine Pelkey hired other counsel. Appellee was notified of the cessation of his employment on February 23, 1956. On March 26, 1956, appellee filed a petition for allowance of attorneys' fees in the sum of Ten Thousand ($10,000.00) Dollars and expenses incurred of One Thousand ($1,000.00) Dollars. An amended petition was filed March 23, 1957, by appellee, seeking an allowance of attorneys' fees in the sum of Nineteen Thousand One Hundred and Ninety Three ($19,193.00) Dollars and expenses in the sum of Three Thousand, Eighty Two Dollars and Eighty Five Cents ($3,082.85), for an aggregate of Twenty Two Thousand, Two Hundred Seventy Five Dollars and Eighty Five Cents ($22,275.85). The latter petition precipitated the litigation which resulted in this appeal. Josephine Pelkey, administratrix and appellant in this action, objected to the petition. On March 25, 1957, trial began before the court without intervention of a jury. After many interruptions, the court, on January 13, 1959, entered the following decision and judgment:

'And the Court, having heretofore heard evidence and argument of counsel on the petition for allowance of attorney fees and having taken the issue under advisement, and the Court now being duly advised in the premises, the Court now grants said petition.

'The Court now finds that the petitioner, Oscar Strom, rendered legal services to the estate as counsel fees, the personal representatives of the estate and that said services are reasonably worth the sum of $12,000.00 and said fees have not been paid.

'It is therefore ordered, adjudged and decreed by the Court that the petitioner, Oscar Strom, recover of and from the Estate of Agnes Kruzick, Deceased, the sum of $12,000.00 (Twelve Thousand Dollars) for attorney fees.'

Appellants have admitted that Josephine Pelkey, individually, has no appealable interest inasmuch as there was no judgment rendered against her and, in effect, consent to dismissal as to her.

A separate and several motion for new trial by Josephine Pelkey, individually, and as administratrix of the estate, was filed on February 11, 1959. On March 7th following, and during the same term of court, the trial court set aside the judgment rendered on January 13, 1959, and on the same day he reentered the said judgment. On said March 7th, said Josephine Pelkey, individually, and as such administratrix, also filed another separate and several motion for new trial 'of the issues presented by...

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12 cases
  • Kingseed's Estate, Matter of, 2-478A122
    • United States
    • Court of Appeals of Indiana
    • December 15, 1980
    ......649, 215 N.E.2d 556; Pelkey v. Strom, (1963) 135 Ind.App. 163, 187 N.E.2d 753; Ex parte Hodge, Administrator, (1892) 6 Ind.App. ......
  • Roe v. Doe
    • United States
    • Court of Appeals of Indiana
    • November 27, 1972
    ...... In re Meyer v. Meyer, (1965) 138 Ind.App. 649, 215 N.E.2d 556; Pelkey v. Storm, (1963) 135 Ind.App. 163, 187 N.E.2d 753.         This general rule finds support ......
  • Lynch v. Keck
    • United States
    • Court of Appeals of Indiana
    • October 21, 1970
    ......Barney et al. (1965) 138 . Page 180. Ind.App. 686, 207 N.E.2d 846, (Transfer Denied); Pelkey, Admrx. etc. v. Strom (1963) 135 Ind.App. 163, 187 N.E.2d 753, (Transfer Denied); Miller, et al. v. ......
  • Barbee v. Frick
    • United States
    • Court of Appeals of Indiana
    • March 18, 1965
    ...... Pelkey v. Strom, (1963), Ind.App., 187 N.E.2d 753, Gaut. v. Gaut (1963), 134 Ind.App. 317, 187 N.E.2d 580. ......
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