70 Ind. App. 237 | Ind. Ct. App. | 1919
This action is to recover a balance due appellants as attorneys for professional services rendered by them for appellee Mary E. Hubbell, in a suit by her for divorce against appellee Lewis W. Hubbell, and to enforce the collection of a note executed by appellees Lewis W. Hubbell and Joseph L. Beesley to appellee Mary E. Hubbell, in the sum of $500, which note, it is alleged, was assigned and delivered by said Mary E. Hubbell, without indorsement, to appellants as collateral security for the balance due them as aforesaid, and out of the proceeds of which said note appellants seek to enforce the collection of their demand against said Mary E. Hubbell.
The complaint was in two' paragraphs, upon which issues were formed, and, after demand by appellants that the cause be tried by the court without the intervention of a jury, which demand was overruled, the cause was submitted to a jury for trial, which returned a general verdict in favor of appellants, against appellee Mary E. Hubbell, for $225, with sixteen interrogatories submitted by the court, and their answers thereto. There was no general verdict against appellees Lewis W. Hubbell and Joseph L.
The errors assigned as grounds for a new trial, and which are considered in this opinion, are: (1) Overruling appellants’ demand for trial by court instead of jury; (2) overruling appellants’ motion for venire de novo.
In the suit for divorce, the property rights were settled between the parties by payment of $5,000 to appellee Mary E. Hubbell by appellee Lewis W. Hub-bell, $500 of which sum was paid in cash, and the remainder thereof by the execution of a series of nine promissory notes, each in the sum of $500, and executed by appellees Lewis W. Hubbell and Joseph L. Beesley, the note involved herein being one of such series. As to the balance due appellants for their services, the first paragraph is upon an account stated, alleging a balance due appellants of $225, with six per cent, interest, and $50 for appellants’ attorneys, for the collection of said note. It is averred that said appellee Mary E. Hubbell, by and through her agent (who was her son), assigned said note to appellants by delivery, without a written indorsement upon the back thereof, said note being so delivered as collateral security for the purpose of secur
There is a demand for judgment against appellees Lewis W. Hubbell and Joseph L. Beesley on said note, and for judgment against appellee Mary E. Hubbell for amount due appellants as stated, and that such sum be declared a lien upon the amount recovered upon the promissory note.
The second paragraph is predicated upon the quantum meruit, alleging a balance due of $275, and that appellee Mary E. Hubbell delivered said note without indorsement to appellants to secure to the appellants the payment of their fee for services rendered, and that they have a lien thereon therefor.
The judgment is reversed, with instructions to the trial court to sustain the motion for a venire de novo, and for further proceedings.