State ex rel. Koch v. Vanderburgh Circuit Court
| Decision Date | 13 January 1965 |
| Docket Number | No. 30581,30581 |
| Citation | 203 N.E.2d 525,246 Ind. 139 |
| Parties | STATE of Indiana, on the relation of Minnie F. KOCH, Relator, v. The VANDERBURGH CIRCUIT COURT, Morris S. Merrell, Judge, Respondents. |
| Court | Indiana Supreme Court |
Bates & Hancock, Evansville, for relator.
Kahn, Dees, Donovan & Kahn, Evansville, for respondents.
This is an original action for a writ of prohibition and mandate growing out of proceedings to appoint a guardian of relator's Indiana estate brought in the Vanderburgh Probate Court.
The Indiana proceedings were instituted by Dorothy Farrow Schrader contemporaneously with proceedings filed for the appointment of a guardian of relator's person and estate in Florida. The law firm of Bates and Hancock entered an appearance in the Indiana proceedings for relator and her son who was also served with process in the case. The appearance of said attorneys was challenged by Kahn, Dees, Donovan and Kahn, attorneys for petitioner below on the basis of Burns' Ind.Stat.Anno. Sec. 4-3611 (1946 Repl.).
Bates and Hancock, as evidence of their authority, introduced a signed and sealed but undated document entitled: 'Answer to the Petition for Appointment of Guardian of the Estate of Minnie F. Koch.' In opposition to this showing petitioner below, Dorothy Farrow Schrader, by her said attorneys, introduced the record of the Florida proceedings in which the Florida court found relator incompetent and appointed a guardian of both her person and her Florida estate. On the basis of these orders and the admission of Bates & Hancock that they had no authorization from the Florida guardian, the respondent court determined that Bates & Hancock were without authority to represent relator and entered an order denying their right to appear and directed that relator be represented by the Vanderburgh County prosecutor together with an attorney selected by the Florida-appointed guardian.
Relator here seeks to have the latter order vacated, on the ground that counsel have made a prima facie showing of their authority to represent relator and that respondent court therefore is without authority to deny their right to appear. A temporary writ of mandate and prohibition was issued.
The determination of this case hinges upon the right of the court to determine the propriety of the appearance of the firm of Bates & Hancock on the basis of the record in the Florida court. Several considerations of law and public policy are important in reaching a proper result in this case.
One: The appearance of said attorneys Bates & Hancock constituted a prima facie showing of authority. Anthony v. Dickey, Judge (1947), 225 Ind. 502, 76 N.E.2d 253; Gatewood v. Board of Com'rs of Hamilton Co. (1949), 119 Ind.App. 297, 86 N.E.2d 298.
Two: It is the policy that law should be liberally construed in guardianship proceedings to allow the presentation of a defense on behalf of the alleged incompetent who may be totally unable to make his own defense or to formally authorize a law firm to make such a defense. This policy finds support under analogous circumstances where the law declares a policy of liberality relative to attempts to restore the right to exercise control over property to the owners thereof. Burns' Ind.Stat.Anno. Sec. 8-148 (1953 Repl.) provides in relevant part:
'Any person may file a petition on behalf of the ward, to have him adjudicated competent. * * *'
Three: The complaint in the primary action in the trial court specifically alleged that 'there is no guardian of the person or estate of said Koch in this or any other state.' Thus, the introduction of such evidence, without first amending the pleadings in the action, was improper because it necessarily had the effect of defeating petitioner's own cause of action.
Four: We are here confronted with a disparity of parties and subjectmatter between the Indiana and Florida proceedings, which disparity prevents the application of the full faith and credit doctrine. Here, under the pleadings, the Indiana proceeding is independent of, rather than ancillary to, the Florida litigation. Further, if the Florida decree were considered applicable, it could only settle the question of competency. The issue as to whom letters of guardianship should be granted in this state remains to be determined. It may well be to relator's interest that the issue be litigated by attorneys of her choosing.
The temporary writ hereinbefore issued is therefore made permanent.
The determination reached by the majority opinion herein is, in my opinion, erroneous and I therefore dissent thereto.
The case at bar comes to us by way of a petition for Writ of Mandate commanding the respondents herein, to strike from the record and expunge from the same, its order heretofore made, denying the right of the law firm of Bates and Hancock to appear for the relator in an action then pending in the Vanderburgh Probate Court entitled Dorothy Farrow Schrader v. Minnie F. Koch and numbered G.D.64-16 on the dockets thereof; relator further sought, in her petition for the writ, an order commanding respondents to permit the appearance of record of the law firm of Bates & Hancock for the relator in said cause No. G.D.64-16, or in the alternative to show cause why the writ should not be made permanent. We issued the writ in the alternative.
The parties have raised issues in the trial court that require discussion in the determination of the issues at bar. Respondent, in his return, states '[t]he sole issue involved in this proceeding is whether or not the law firm of Bates & Hancock should have been permitted to appear for the alleged incompetent, Minnie F. Koch, in the proceeding pending in the Vanderburgh Probate Court for the appointment of guardians for the estate of Minnie F. Koch located in the State of Indiana.' With that contention the writer is not in entire agreement.
The factual situation here presents a muddled and not entirely pleasing picture. The record before us discloses that cause No. G.D.64-16 was instituted in the Vanderburgh Probate Court on January 28, 1964, that such action was instituted for the appointment of a guardian for one Minnie F. Koch. One of the allegations of the complaint, being rhetorical paragraph six thereof reads as follows: 'That there is no guardian for the person or the estate of said Koch on this or any other state.'
Thereafter, on the same day respondent court entered an order herein, which omitting the heading and signature thereto reads as follows:
'Comes now Dorothy Farrow Schrader and files her verified petition herein for appointment of guardians of the estate of Minnie F. Koch, an alleged incompetent, and the Court now sets said petition for hearing more than 10 days hence and on the 18th day of February, 1964, at 9:30 a. m. and orders that notice of said petition be served as follows:
'That a notice and summons be issued by the Clerk and delivered by the Sheriff of Vanderburgh County, Indiana to said alleged incompetent, Minnie F. Koch, by leaving a copy of the same at her last and usual place of residence at 3521 Lincoln Avenue, Evansville, Indiana; that notice and summons be sent by the Clerk by registered mail, return receipt requested, addressed to said Minnie F. Koch at 6685 Sheffield Lane, LaGorce Island, Miami Beach, Florida, to be posted by depositing in any United States Post Office in this state at least 14 days prior to the date set for hearing in said notice; that notice and summons be sent by the Clerk by registered mail, return receipt requested, addressed to Florence A. Curtis at 6685 Sheffield Lane, LaGorce Island, Miami Beach, Florida, to be posted by depositing in any United States Post Office in this state at least 14 days prior to the date set for hearing in said notice; that notice and summons be delivered by said Sheriff to William H. Koch by leaving a copy of the same at his last and usual place of residence at 14 Jefferson Avenue, Evansville, Indiana; that notice and summons be sent by the Clerk by registered mail, return receipt requested, addressed to William H. Koch at 6685 Sheffield Lane, LaGorce Island, Miami Beach, Florida, to be posted by depositing in any United States Post Office in this state at least 14 days prior to the date set for hearing in said notice; that notice and summons be sent by the Clerk by registered mail, return receipt requested, addressed to Administrator, Cedars of Lebanon Hospital, 1321 N.W. 14th Street, Miami, Florida.'
Thereafter, on the 17th day of February, 1964, the following order was entered or record in the Vanderburgh Probate Court, to-wit:
'Comes now Bates and Hancock, attorneys, and enter appearance for Minnie Koch and William H. Koch herein.
'/s/ Morris S. Merrell, Judge
Vanderburgh Probate Court.'
Thereafter, on the 18th day of February, 1964, the following order of said court was made and entered of record, such order, omitting formal parts and heading, reads as follows:
'Comes now the petitioner, Dorothy Farrow Schrader, in person and by her attorneys, Kahn, Dees, Donovan & Kahn, and petitioner now shows to the Court that this is the time and place heretofore fixed by the Court for a hearing on petitioner's verified petition for appointment of guardians of the estate of Minnie F. Koch, an alleged incompetent, and petitioner shows and the Court now finds that summonses and notices as ordered by the Court herein on January 28, 1964, of the time and place of hearing on petitioner's said verified petition had been duly served as required by law and by said order.
'And now come Bates & Hancock, attorneys at law, they having heretofore entered their appearance in this cause for the alleged incompetent, Minnie F. Koch, and William...
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