State ex rel. De Armond v. Superior Court of Madison County, 27382.

Decision Date05 March 1940
Docket NumberNo. 27382.,27382.
Citation25 N.E.2d 642,216 Ind. 641
PartiesSTATE ex rel. DE ARMOND et al. v. SUPERIOR COURT OF MADISON COUNTY et al.
CourtIndiana Supreme Court
OPINION TEXT STARTS HERE

Original mandamus proceeding by the State of Indiana, on the relation of Grace B. De Armond and another, against the Superior Court of Madison County, Indiana, and Oren W. Dickey, of Marion, Indiana, Special Judge.

Petition denied.Grace B. De Armond and Lawrence Booram, both of Anderson, for relators.

SHAKE, Chief Justice.

This is an original action for a writ of mandate against the Superior Court of Madison County and a special judge thereof. The relators were attorneys for a wife who was sued for divorce by her husband. A cross-complaint for divorce was filed by the defendant in that action. The petition recites that upon the trial of the cause the relators ‘inadvertently omitted to introduce expert opinion testimony as to the value of their services in defense of the husband's application for divorce.’ At the conclusion of the evidence, and before the finding was announced, relators made an oral request that they be permitted to show the value of their attorneys' fees and to make proof thereof. This request was refused and the court thereupon found against the plaintiff on his complaint and against the defendant on her cross-complaint and rendered judgment accordingly. Thereafter, and during the term, relators filed in said cause their motion to vacate the judgment and to modify the same by having an order made to require the plaintiff in the divorce action to pay a reasonable sum as attorneys' fees for the defense of the wife in said divorce suit. The court struck out the relators' motion upon the grounds that they were not parties of record and that the court was without jurisdiction to pass upon the matters presented thereby. This action followed.

Relators are proceeding under chapter 160 of the Acts of 1939, § 3-1216, Burns' Supp., Sec. 923, Baldwin's Ind.St.1934 (1939 Supp.), which provides that: ‘* * * on decreeing a divorce in favor of the wife or refusing one on the application of the husband, the court shall, by order to be enforced by attachment, require the husband to pay all reasonable expenses of the wife in the prosecution or defense of the petition including a reasonable sum for the services of the attorney representing such wife which sum for attorney fee shall be payable direct to said attorney and the order for same shall be in the name of said attorney, when such divorce has been granted or refused.’ It is the theory of the relators that this provision of the statute placed an absolute duty upon the trial judge to make...

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8 cases
  • Harp v. Indiana Dept. of Highways
    • United States
    • Indiana Appellate Court
    • 23. Januar 1992
    ...Wysong v. Automobile Underwriters, Inc., 1933, 204 Ind. 493, 504, 184 N.E. 783, 94 A.L.R. 826; State ex rel. DeArmond v. Superior Court of Madison County, 1940, 216 Ind. 641, 643, 25 N.E.2d 642; City of Gary v. Yaksich, 1950, 120 Ind.App. 121, 126, 90 N.E.2d 509; 59 C.J. Statutes Secs. 635,......
  • State ex rel. McNabb v. Allen Superior Court 2
    • United States
    • Indiana Supreme Court
    • 3. Dezember 1947
    ...a divorce upon his complaint and denying defendant a divorce upon her cross-complaint. In deciding the case this court said, on page 644 of 216 Ind., on page 643 25 N.E.2d: '* * * The action of the trial court in refusing to reopen the case to hear evidence as to the value of said services ......
  • Castor v. Castor
    • United States
    • Indiana Appellate Court
    • 28. August 1975
    ...a divorce action and as earlier noted the court has discretion whether to assess fees against the husband. State ex rel. DeArmond v. Superior Court (1940) 216 Ind. 641, 25 N.E.2d 642; Becker v. Becker (1966), 141 Ind.App. 562, 216 N.E.2d 849. It was therefore conceivable that the trial cour......
  • Middlefork Watershed Conservancy Dist., Matter of
    • United States
    • Indiana Appellate Court
    • 3. Juni 1987
    ...ex rel. City of Indianapolis v. Brennan (1952), 231 Ind. 492, 498, 109 N.E.2d 409, 411; State ex rel. DeArmond v. Superior Court of Madison County (1940), 216 Ind. 641, 643, 25 N.E.2d 642, 642; Hancock County R.E.M.C. v. City of Greenfield (1986), Ind.App., 494 N.E.2d 1294, 1295, trans. den......
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