Potter v. Daily

• Decision Date: 23 March 1942
• Docket Number: 27691.
• Citation: 40 N.E.2d 339,220 Ind. 43
• Parties: POTTER v. DAILY et al.
• Court: Indiana Supreme Court

40 N.E.2d 339

220 Ind. 43

POTTER v. DAILY et al.

No. 27691.

Supreme Court of Indiana

March 23, 1942

Appeal from Benton Circuit Court; Moses Leopold, Special judge.

Fraser & Isham, of Fowler, for appellant.

Thos A. Daily, Wilson S. Daily, and John H. Daily, all of Indianapolis, and F. Edward Dumas, of Fowler, for appellees.

SWAIM Judge.

This is an appeal from a judgment rendered in favor of Thomas A Daily and Wilson S. Daily, partners doing business under the firm name and style of Daily & Daily, against the appellant, George L. Potter, in an action for attorney's fees. The judgment was based upon the appellees' amended first paragraph of complaint which alleged that the appellees were attorneys and that, on February 6, 1933, they were employed by the appellant under a written contract of employment to contest and to attempt to set aside certain codicils to the last will and testament of Fannie W. Potter the mother of appellant. The written contract of employment recited that the said Fannie W. Potter died on January 9, 1933, leaving surviving her the appellant as her only child and her sole heir at law; that she had made and executed certain codicils to her last will and testament, which practically disinherited the appellant; that at the time these codicils were executed the condition of her health was such as to render her incompetent and incapable of making such codicils; that the appellant desired to employ counsel to seek an amicable settlement between himself and the legatees named in said codicils and, if necessary, to secure his rights by litigation; that in order to accomplish these ends he was employing the appellees as his attorneys and agreed to pay them an amount equal to either five or ten percent of the property secured from decedent's estate by the appellant, the percentage to depend on whether the results were obtained by compromise or litigation.

The amended paragraph of complaint further alleged that pursuant to said employment the appellees prepared and filed a complaint for said appellant in the Tippecanoe Circuit Court and that in that action a judgment was rendered, September 29, 1933, in favor of the appellant; that pursuant to said judgment said codicils were set aside and the appellant received the estate of his mother pursuant to her last will and testament; that said judgment was rendered pursuant to an agreement compromising all of the rights of the parties involved except the rights of the appellant's minor children.

Said amended paragraph of complaint further alleged that after said compromise was agreed upon, but before said judgment was entered of record, the appellant and the appellees, in order to avoid the necessity of making an appraisement of the property to be recovered by said appellant pursuant to said compromise, mutually agreed that the appellees, Daily & Daily, should receive for their services a fee in the amount of $12,500, to be paid by the appellant as follows: $5,000 cash when the property of the estate should be delivered to the appellant as executor of said last will and testament, and the remainder of $7,500 payable $1,500 each year beginning October 18, 1934; that the appellant agreed to assign and deliver certain collateral security to the appellees to secure to them the payment of the deferred balance of said fee, and the appellees agreed that upon the assignment and delivery of said collateral security they would release the attorneys' lien which they had entered on the margin of the record of said judgment; that after the appellees and appellant had so agreed upon the amount of the fee, said agreement was reduced to writing and signed by the appellees on October 18, 1933. That said contract was then delivered to the appellant, who at the same time delivered to the appellees a check in the sum of $4,565 in payment of the balance of the $5,000 initial payment provided for in said contract.

The amended paragraph of complaint further alleged that the parties to said agreement, pursuant to the terms thereof, made no attempt to appraise said property or reach any other settlement than as provided therein; that thereafter the appellant neglected and failed to deliver to the appellees the collateral security and also failed to pay the deferred installments, all as provided in said contract. The remainder of said amended first paragraph of complaint was as follows:

'That by reason of the foregoing all of said payments are now due and collectible and plaintiffs are entitled to a foreclosure of their liens as attorneys for said George L. Potter.

'That said George L. Potter, Executor of the Last Will and Testament of Fannie W. Potter, deceased, as such Executor has in his hands funds of said estate belonging to George L. Potter, defendant herein, the sole residuary legatee therein, in excess of $12,500.00.

'That said funds were secured by said George L. Potter through the efforts of the plaintiffs herein.

'That by reason of the foregoing facts the plaintiffs herein have a statutory and equitable lien on said funds in the hands of said Executor.

'Wherefore these plaintiffs ask that the said lien may be enforced and that they recover judgment against said George L. Potter for $12,500.00; and that said judgment be declared a lien upon the property recovered by plaintiffs for said George L. Potter, both real and personal, including the funds in the hands of said George L. Potter, Executor of the Last Will and Testament of Fannie W. Potter, deceased, as well as the real estate vested in him as legatee of said Fannie W. Potter, deceased; and that said lien may be foreclosed and that plaintiffs may have execution on said judgment.

'That said George L. Potter, Executor of the Last Will and Testament of Fannie W. Potter, deceased, as such Executor, be ordered to pay out of the funds of said George L. Potter, as residuary legatee of said Fannie W. Potter, the sum of $12,500.00 with interest thereon from the 16th day of October, 1933, at the rate of 6% per annum. And plaintiffs further pray for all other proper relief.'

To this amended first paragraph of complaint the appellant filed an answer in two paragraphs: (1) General denial; and (2) plea of non est factum to the agreement dated October 18, 1933. On the day the cause was set for trial the appellant moved the court 'for a trial of all of the issues in the above entitled case before a jury, as an action at law', which motion was overruled. The trial court found that the appellees were 'entitled to recover on their amended first paragraph of complaint from the defendant, George L. Potter, the sum of $9,957.50, principal and interest to date, on the contract sued upon, dated October 18, 1933,' and entered judgment accordingly.

The appellant filed a motion for a new trial, assigning as grounds therefor that the decision of the court was not sustained by sufficient evidence and was contrary to law.

The appellant relies on only two assigned errors: (1) The trial court erred in overruling the motion of appellant to try the issues formed by the pleadings in the case by a jury as an action at law; (2) the trial court erred in overruling the motion for a new trial.

The appellant's first assignment of error presents no question for the determination of this court. The submission of the issues for trial is part of the trial. The refusal of the court to submit the issues to a jury, therefore, can not be made the basis of an independent assignment of error. To make available such an error it must be specified as a ground for a new trial and the action of the court, in overruling the motion for a new trial, then assigned as error on appeal. Piggly-Wiggly Stores, Inc., v. Lowenstein, 1925, 197 Ind. 62, 67, 147 N.E. 771; Kelley v. Bell, 1909, 172 Ind. 590, 595, 88 N.E. 58; Childers v. First National Bank, 1897, 147 Ind. 430, 46 N.E. 825; George v. Massey Harris Co., Ind.App.1941, 34 N.E.2d 956. In Horlacher v. Brafford, 1895, 141 Ind. 528, 532, 40 N.E. 1078, 1079, this court said: 'The failure of the court to award a jury trial should have been given as a reason in a motion by said appellant for a new trial. It was not enough to except to the ruling of the court, and to assign such ruling as error. The court was entitled to an opportunity to correct its error by sustaining a motion for a new trial for such reason. The court having been deprived of this opportunity to correct its error, the same is unavailable.'

While some authorities consider the refusal of a jury trial, when properly demanded in a cause triable by jury, as an irregularity in the proceedings of the court, Watson's Revision of Works Practice and Forms, Vol. II, § 1941, p. 519; Elliott's Appellate Procedure, § 848, p. 786, and others consider it an error of law occurring at the trial, Alley v. State ex rel. Blenzinger, 1881, 76 Ind. 94, all of the authorities are uniform in holding that in assigning a cause for a new trial under either of these statutory specifications the particular cause complained of must be specified. The trial court must be apprised of the particular act which it is alleged constitutes the irregularity or error. It is not sufficient to use the language of the statute. Watson's Revision of Works Practice and Forms, Vol. II, § 1940, p. 517; § 2020, p. 577 and cases there cited.

The appellant also seeks to reach the question of his being denied a jury trial under the assignment that the decision of the court was not sustained by the evidence and was contrary to law, on the theory that the failure of the court to give the appellees any equitable relief 'constitutes a judgment binding them that they had not established by the evidence any facts necessary to invoke the equitable jurisdiction of the court.' Under our practice ...