State ex rel. Johnson v. Cody, 26870.

• Decision Date: 09 June 1937
• Docket Number: No. 26870.,26870.
• Citation: 212 Ind. 247,8 N.E.2d 971
• Parties: STATE ex rel. JOHNSON v. CODY, Judge.
• Court: Indiana Supreme Court

212 Ind. 247

8 N.E.2d 971

STATE ex rel. JOHNSON

v.CODY, Judge.

No. 26870.

Supreme Court of Indiana.

June 9, 1937.

Original action for writ of mandate by the State, on the relation of Earl W. Johnson, against John F. Cody, Judge of the Lake Superior Court, Room No. 1, at Hammond, to grant a change of judge, wherein an alternative writ issued.

Writ made absolute.

E. W. Johnson, of Hammond, pro se.

John E. Buenting, of Indianapolis, amicus curiae.

FANSLER, Chief Justice.

This is an original action for a writ of mandate, directing the respondent to grant a change of judge. It appears that the relator acted as attorney for the guardian of a disabled veteran. He filed in the court administering the estate a verified claim for services to the guardianship, and asked for its allowance, and an order against the guardian to pay. Thereafter he filed a verified motion, in proper form, for a change of judge, which was denied. Upon the filing of this action an alternative writ issued.

An attorney is entitled to recover the reasonable value of services rendered the estate of an incompetent. State ex rel. Nave et al. v. Newlin et al. (1879) 69 Ind. 108. The practice requires that disputed claims against a ward's estate be presented by a complaint or petition against the guardian in the court having jurisdiction of the ward's estate. Stewart v. White, Guardian (1909) 44 Ind.App. 87, 88 N.E. 716, and cases cited. The claim of an attorney for services is of the same character as the claim of a physician for services, or of a person furnishing necessities, for the benefit of the ward. It is therefore a civil action, which is tried by the court or jury as any other civil action, and the parties are entitled to changes of venue as in civil actions. Section 2-1401, Burns' Ann.St.1933, section 190, Baldwin's Ind.St.1934. Upon the filing of a sufficient motion, the court has no discretion, but must grant the change, and, upon refusal, mandate will lie. State ex rel. O'Neill et al. v. Pyle et al. (1933) 204 Ind. 509, 184 N.E. 776.

The alternative writ heretofore issued is made absolute.