28 Ind. App. 428 | Ind. Ct. App. | 1902
April 6, 1883, appellee insurance company issued to one William A. Johnston, a policy of insurance on his life, payable to himself, fifteen years after its date. Before its maturity he became indebted to Henry Macke, now
The insurance company being unable to determine to whom it should pay the money, and to protect its rights, brought an action against all the parties claiming an interest in the policy for the purpose of having the court adjudicate the conflicting interests. To this proceeding Blakey and Williamson, the only appellants here, intervened, and asked to be made parties, claiming that they had an equitable interest in the proceeds of the' policy. They were admitted as parties and filed a cross-complaint in which they averred that Henry Macke, the assignee of said policy of insurance, was made a party to Rodwell’s proceedings supplementary to execution, and that he employed appellants to represent him in that proceeding; that they did represent him and filed a cross-complaint for him in which they set up said assignment, and asserting that by reason thereof he held a first lien upon said policy and the funds arising therefrom for the payment of the indebtedness due to him from said Johnston. In the cross-complaint it was averred that at the time of said employment it was agreed between Macke and appellants that the attorney’s fees provided for
The cause was submitted to the court and a finding made against appellants on their cross-complaint. It is not necessary to state the findings as to the other parties for they are not appealing. The appellants moved for a new trial on the ground that the decision of the court was contrary to law and not sustained by sufficient evidence. This motion was overruled, and such ruling is assigned as error. The sole question presented by the record and discussed by counsel is one of fact, and that question is, did Macke employ appellants to represent him as his counsel in the proceedings supplementary to execution, and agree with them that the attorney’s fees provided for in the notqs should be collected from the funds arising from the insurance policy as compensation for their services? If this inquiry can, from the record, be answered in the affirmative, then the decision of the court is not sustained by sufficient evidence. Such an agreement would carry with it an equitable assignment of the funds arising from the policy of insurance in favor
In the proceedings supplementary, to which Macke was a party, he was not at first represented by counsel, and his cross-complaint was filed after the action was partially tried. During the adjournment of court, at the noon hour, appellant Blakey sent for Macke to come to his office. He went and there met both of the appellants. Appellants wanted to see the notes which Macke held on Johnston and also the policy assigned to him, and requested that he bring them to Blakey’s office. Appellants were attorneys for Johnston in that proceeding. Macke went to Blakey’s office and took the . no tes and insurance policy as requested. Appellants represented to him that he should appear to that proceeding and protect his interest. He informed them that he did not want to go to the expense of “hiring a lawyer”. He, however, left the notes with Blakey that he might' copy them. Appellants both testified that they explained to Macke that they would file a cross-complaint in that proceeding and protect his interests in that way. The cross-complaint of Macke was filed May 17, 1897. May 29, following, Macke appeared in court by Louis J. Herman as counsel and filed an affidavit to the effect that he had not employecj appellants as his attorneys to represent him in that case; that he did not know that they were going to file a cross-complaint for him; that he repudiated their acts, and moved the court to strike the pleading from the files. While there was no formal order of the court striking the cross-complaint of Macke from the files, no further notice was taken of it; appellants did not longer represent him; and the court made no order or finding relating to it.
The evidence of appellants is to the effect that Macke employed them in that case,' and that they said to him that they would protect his interests by filing a cross-complaint, and that they would look to the fund arising from the policy for their fees as the notes provided for attorney’s fees.
Mr. Macke on his examination in chief stated that he did
We have given a fair resume of all the material facts, relating to the matter at issue, and it is upon these facts we-are asked to reverse the decision of the trial court.
The court unquestionably found from the evidence that, there were no contractual relations of client and attorneys between appellants and Macke in the Eodwell litigation, and that the appearance of the former as attorneys, and the filing of the cross-complaint were unauthorized. Beforewo can disturb such finding we must be able to say that, there is no evidence in the record upon which t<? base the finding of the trial court. In addition to the facts we have stated, there is one pertinent matter that might be mentioned. In the Eodwell litigation it was a conceded fact-that by the assignment of the policy to Macke he had a superior lien upon or claim to the policy. The policy had. not then matured, and no attempt was being made to subordinate his interest in the policy to the claim or claims of' any one else. Under these facts there was really no necessity of employing an attorney to protect his interests, and these are strongly corroborative of the other facts and circumstances in support of appellee’s contention that he-never employed appellants. The trial court evidently came to the conclusion, from all the evidence, that appellants were not employed by Macke as his attorneys, and we can not reverse this judgment without weighing the evidence-
The preponderance of the evidence is a question for the jury or trial court, and when the evidence is conflicting, and there is some evidence to support the verdict or finding, and the trial court has overruled a motion, for a new trial asked because the verdict or decision is not sustained by sufficient evidence, such action of the trial court is condusive upon an appellate tribunal. Fox v. Cox, 20 Ind. App. 61; Bachman v. Cooper, 20 Ind. App. 173.
Judgment affirmed.