Stoll v. Rich

• Citation: 165 N.E. 67,88 Ind.App. 639
• Decision Date: 23 February 1929
• Docket Number: No. 13314.,13314.
• Parties: STOLL et al. v. RICH et al.
• Court: Court of Appeals of Indiana

88 Ind.App. 639

165 N.E. 67

STOLL et al.

v.RICH et al.

No. 13314.

Appellate Court of Indiana, in Banc.

Feb. 23, 1929.

Appeal from Superior Court No. 2, St. Joseph County; Orla Deahl, Judge.

Action by Daniel Rich and another against Elmer R. Stoll and another, as executors of the estate of John B. Stoll, deceased. Judgment for plaintiffs, and defendants appeal. Reversed.

Wm. J. Reed, of Knox, for appellants.

Seebirt, Oare & Omacht, of South Bend, for appellees.

NICHOLS, J.

Action by Rich & Pyle, for their fees as attorneys for the executors of the estate of John B. Stoll, deceased, in the sum of $2,000. It appears by their petition filed with the court that they were partners engaged in the practice of law in the city of South Bend, Ind., under the firm name of Rich & Pyle; that on April 12, 1926, they were employed by appellants, executors of the will of their father, John B. Stoll, to furnish legal assistance and advise in the administration of said estate. Appellants were appointed executors of said will about said time, and have ever since acted in said capacity. The estate consisted of personal property and real estate, and was of the total approximate value of $65,000. They represented appellants and said estate to the best of their skill and ability for more than a year, concerning the business of said estate, and have filed an itemized statement of their services, which is made a part of their petition.

The year for administration upon said estate has expired, and on or about May 2, 1927, they met with one of the executors, and when they were engaged in preparing the final report they informed him what their fee would be for attending to the business of said estate and performing all legal services rendered by them therein; but said executor refused to pay the same, or to present the matter to the court, and informed them that no final report would be filed until the amount of the fee for their said services was determined. They represent that the reasonable and fair value of their said services is $2,000, and ask that the court determine the amount of the compensation due them and order the same to be paid.

After the hearing below, Daniel Rich died, and appellee Citizens' Trust & Savings Bank was substituted as petitioner. There was an answer in denial, and, after trial, the court found that the claimants performed all services sued on in their claim, and that a reasonable fee therefor is $2,000. There was an order for payment accordingly, from which this appeal; appellants assigning as error that the court had no jurisdiction to try the cause, and erred in assuming jurisdiction, in overruling appellants' motion to return the above-entitled cause to the St. Joseph circuit court, in overruling appellants' motion to make the complaint more specific, and in overruling appellants' motion for a new trial.

[1] As to the jurisdictional question that appellants present, it appears by the record that their claim was filed in the St. Joseph circuit court, and that the judge thereof on his own motion transferred the same, without any objection on the part of appellants, to the St. Joseph superior court No. 1, in which court appellants appeared and filed their motion to make the complaint more specific, and then filed an affidavit for a change of judge, on which the cause was transferred to superior court No. 2. In this last-named court appellants filed their motions and answers, the cause went to trial, and the court heard evidence...