*1 536 (1960),
mined
this court in Allison v. State
240 Ind.
556,
petition
ground
on
herein
this court has no
original
jurisdiction
petition
to entertain a
for writ
principle
of error coram nobis. This
is well established
Stephenson
(1932),
141,
page
v. State
205 Ind.
at
194,
633,
179 N.
E.
and Lake v. State
E.
(1947),
76,
225 Ind.
For the reasons stated the is dismissed. Bobbitt, J., participating. C. Reported in 172 N. E. 2d 576.
Note. — Darlington of Hammond et al. 29,877. Rehearing Filed [No. December 1959. denied April 1961.] *3 Richards, Hammond, James J. of Boyd, Alan W. Barnes, Hicham, M. Boyd, Charles Wells and Pantzer & counsel, Indianapolis, of all of appellant. for Northam, Indianapolis,
James K. of Owen W. Crum- pacher Gemberling, and Hammond, Theodore of M. for appellees. attorneys’ J. This is an action to recover
Achor, legal performed by taxpayer fees for services attor- legal ney performed by him, which services prevented payment judgments 124 of have taken against City $950,000. the of Hammond the in sum of payment judgments A bond issue for the of these had Appellee been authorized and notice thereof issued. injunction against obtained an said bond issue and judgments against payment ground the of on the of procurement. and collusion in their fraud Ap the appealed judgment in that ease was The (1952), Darlington et al. pellate Gilkison Court. Ap 47-48, E. 2d 473. 45-46, App. 28,
Ind. being injunction as the decree pellate reversed Court judgment portion the broad, affirmed too but “ certain of those each and all ‘That determined Hammond, City against judgments purported ” “in However, action since said was are void.’ . . . law,” attacking judgments in party, by equity third court, that, . . further “. Appellate stated Court entered, judgments should having void as decreed quo by or also status parties to the have returned the readjudicated aside,” on dering set reaching this In of each case. of the merits the basis Appellate stated: Court conclusion findings “Furthermore, of fact do not show original upon actions were not based that all the Hammond, against or that valid claims knowledge prac- parties had of the fraud all of the attorneys. fact, In upon their ticed the the court strong findings contain inferences of fact findings However, contrary. the court’s the fact are so generalizations and con- involved with impossible rea- that it is to determine with clusions judg- certainty the extent to which said sonable ments were grounded upon claims valid or invalid against Hammond. . .” . setting observed that Court
Further judgment rede- each of the 124 cases and aside the merits, procedure termining upon each its may claims protect those individuals whose “. . . would and, part at the same in whole or meritorious *4 valid, . . .” claims are not those which time defeat presented under the rec- question thus is whether The litigation disposition of the such a has been ord there taxpayer-attorney is now entitled appellee aas that city for services. his fee from the question The appellee’s fees services was con by sidered the previous appeal Court in the Darlington, supra, p. approved [Gilkison at It 48]. court, 9 of No. was as which Conclusion trial follows: ancillary “On and incidental between issue plaintiff city and the his relative to reimbursement expenses
for his incurred ac- on its behalf in this tion, he reimbursement, is entitled but the yet reasonable amount and extent thereof cannot court, be determined because of fact expenses that through this action and said will continue said stages, plaintiff’s expenses future compose in this case will a related whole. jurisdiction court should defer action and retain finally thereof until this is cause both concluded appeal. [pp. Ap- and on in this court . . .” 47-48 pellant’s Brief on Petition to Transfer.] However, approval of the above Conclusion No. is adjudication presently an that entitled is fees, finding his rather that such fees should only paid upon subject be final determination of the litigation, matter at which of the time amount city performed saving and the for the effected could determined. regarding* disposition the evidence final
What litigation saving and of the actual cases litigation accomplished? stipulated by It was parties in this “in all the 124 cases in- case, supra, volved in the Gilkison official records Superior Court, (where 1 and in Lake Rooms adjudicated), made, no cases were entries have been (have (and) judgments been) against no entered for or City of Hammond since November 1952” when of the Gilkison case was denied transfer this court. testified, True, appellee that, prove “I think I can However, are the 124 dead dodos.” *5 appellee by provide any did not statement evidence disposition judgments against any of a final of those city. Rather, by as stated one of the witnesses for long they stand, always appellee, “as there is possibility plaintiffs that bona fide are involved.” performed question appellee
There no that is appellant for and valuable and laborious service for the However, as the this he is to commended. no evidence record stands before there is us regarding saving appel of the which amount saving actually accomplished city, lee has for which necessary regarding any element to determination the amount of the fee to is entitled voluntary his conclude that services. We therefore judgment by of the trial court is not sufficient sustained evidence and must be set aside. argued
Other issues to this court are as follows: First, argued permitted this court is not sufficiency consider the evidence for the reason original that all the record in the action of Gilkison v. Darlington, supra (123 App. 28) Ind. was not called for praecipe in the current case. It is a fact that only praecipe transcript called for a in the former day March, 1950, from and after 17th proceedings much of the whereas in that case tran spired before that date. general Supreme
It is a that the Appellate rule only of Indiana will consider Courts which is praecipe called for and included in the However, transcript. ancillary subsequent or appeals may judicial the court take notice of appeal, though in the former the record even the cur appeal phase involves a rent new or limited Harrison, appeal. (1953), former In re etc. 231 Ind. 722; 665, 666, 109 N. E. 2d ex State rel. Stanton v. Murray; (1952), 223, 233, Stanton v. State 231 Ind. 251; Indianapolis Dairymen’s Co-op. 2dE. (1948), 412; Bottema 226 Ind. 79 N. E. 2d Rooker Fidelity Co., (1931), Trust Trustee 202 Ind. V. 653, 177 N. E. 454. Therefore the Court could properly judicial have taken notice of the record in the former Gilkison case.
. Secondly, appellant, City Hammond, maintains *6 although appellee that' may performed have greatly taxpayers City which have benefited the Hammond, appellee of payment is not entitled to for expenses his services and since there is no contract for separate his services and no fund exists or has been pay position recovered out of which to his fee. This cannot'be sustained. When filed his a action $950,000 bond issue had been authorized and the bonds purchaser be sold to a were bona fide within six days. money The certainly paid would have been judgment holders taxpayers and lost to the of Ham- Darlington litigation mond had not entered into the stopped the sale of the of bonds. Because the facts re- by Darlington’s complaint enlightened vealed citi- through City zens of repealed Hammond their Council the bond issue ordinance. To the extent that the 124 readjudicated cases are in favor of the of Ham- mond, savings a will be taxpayers realized for the of just of realistically though Hammond as as re- illegal expenditure. covered after an brought The fact that no fund was into existence the bond issue out payment made, which could be or that no money sum of actually recovered, pro- was justification vides no denying recovery for services prevents rendered payment which money by city obligated otherwise it would pay. jurisdic- principle other The been considered tions. Supreme a recent that state
In Iowa case Court adopted the in the New York rule stated Bysheim (Sup. 1943), 2d Miranda Ct. 45 N. Y. S. 473, 475, as follows:
“ ‘The court cannot subscribe to the narrow view production that the a sine creation or of a fund is qua compensation. for an award of non principle in derivative on which allowances actions are made is those who share produced by a benefit one of their number should expense justly Under producing share in the the benefit. principle it is that the manifest award upon production depends the benefit and not may upon benefit take. the form that the benefit That may the form of the creation of a be in fund may It or the reduction or cancellation of debt. prevention the form of the or be in of. loss the- ” of an claim.’ defeat adverse (1952), 244 ex rel. Weede v. Bechtel Iowa State 814, 56 W. 2d We 179. subscribe the above controlling proposition of in this case. law as “Darlington Finally appellant asserts that since was *7 chief, employ plaintiff” case in in the he “could attorney,” to himself as an and or be indebted Ap attorney an action for fees. thus maintain heavily pellant on allow cases which do not relies attorney. an to collect an fees as estate trustees profit a make theory, not allow to which trustee will office, apply this case. does not to Here the his from fiduciary in the those of as case were not services action Dar Neither is cause of which trustee. brought parties the real in lington own. his Here taxpayers of and Hammond the serv are the interest legal performed for appellee were services ices Lumbermen’s Mu- taxpayers a class. Koster v. such Casualty (1946), 518, tual Co. 330 U. 67 S. S. Ct. 828, 830, taxpayers profited 91 L. 1067. All of Ed. Darlington’s appellee legal services which he aas taxpayer prosecute was authorized to as a member taxpayer-attorney the class. As en- paid according legal titled to be for his according nature and extent of such services and they financially the measure that have benefited the city. Obviously appellee may attorney not collect as an again collect then for same services as a non- attorney-plaintiff. given, judgment
For the reasons herein lower court ordered set aside and the cause is ordered for per- continued submission further evidence taining to the final determination of the subjects each of the 124 primary cases which are the litigation, and the trial court in this cause is di- attorney’s fix a rected to reasonable fee in those cases finally which have been determined and as the re- finally mainder are determined.
Judgment reversed.
Arterburn, J., Bobbitt, Landis, C. JJ., Jackson and concur.
ON FOR PETITION REHEARING Achor, grounds Appellees assert two re- J. hearing.
First, appellees present insist record is in transcript sufficient because does not contain a primary formerly appealed the entire record presented Court and on this court petition Darlington to transfer. See et al. Gilkison App. 28, (1952), E. 2d Ind. transfer support contention, appellees denied. In of this reassert
545 necessary appeal record in former the entire the that attorneys’ subject fees since upon the of to a decision compen- appellees seek nearly all for which the services by that record. sation are evidenced challenge propriety appellees the particular, In opinion of following in contained the the statement Darlington (1959), court Hammond v. this in 619, : E. 2d 241 Ind. ancillary judicial subsequent appeals However, in or “. . . in may the record notice of court take
the the former though appeal appeal, even current ap- phase the former a new or limited involves peal. . . complexity the above apparent of the Because appellees, it seems poses the minds of the in statement clarify position appropriate for court to its saying procedure rule further apply quoted is not intended evidence case. the former (assuming purported before the case us
In accomplished), saving city had there been nature, ample in the record as to the evidence extent attorneys services of their and value efforts of. liability of Hammond to relieve against it. The previously taken record litigation required, was in this nor was it made part aspect of the record in this introduced Therefore, predicated upon m> error could be case. incorporate previous record in this failure proceedings. ’ necessary However, became Court (and transfer, appeal this court on 241 Ind. in this supra) judicial E. 2d 619 to take 162 N. notice original appeal in the of the record because of opinion appeal that the in that fact affirmed *9 court, Conclusion No. 9 of the trial relative to the appellants’ by allowance of only, fees member without setting forth the conclusion in For its full context. necessary proper Appel- this reason it was the go ju- late Court and this court the record or “take to knowledge” dicial of such Conclusion No. as con- record, purpose construing tained in the for the of the opinion. The authorities opinion cited in the earlier of clearly position. court sustain this
Secondly, appellees maintain that the .record in this appeal discloses that the opinion conditions of the of complied the Court have been with and appellees therefore are Appellees entitled to their fees. pursuant fact that cite the to the of remand the case appeal said the Porter Circuit an Court entered setting judgments Superior order aside the in the Lake and that Courts this action disposi- constituted a final original of such tion judg- causes of action in which against ments had been taken of Hammond. Apparently appellees signifi- comprehend do. not proceedings prescribed cance of the in the former opinion. This further statement is written in an at- clarify tempt bring to the situation and an end to this litigation.
A judg decree in the Porter Circuit Court that Superior ments in Lake be Courts set does aside spontaneum not in disposition constitute final of the causes action in Rather, upon compliance were taken. of the by mandate the Porter Circuit Court the Lake Su perior Courts, thereby the several causes of action re they entering prior to the held to the turn status which judgments in the first instance. Said causes of thereby finally adjudicated. action are (123 Appellate Court opinion stated in As of the bondholders 28), appeared App. that some Ind. against claims may have had valid in the several causes savings city cannot Hammond. involving these of action determined until causes be readjudicated finally dis- claims are set aside and or trial. missal Darlington, City Hammond previously stated in
As 619, 622: pra, E. 2d Ind. su (Dar- taxpayer-attorney “. . As . legal paid lington) is for his entitled according and cially the nature and extent such services according they have finan- measure *10 city. ...” benefited savings presented, the circumstances here Under determined with cannot be of Hammond causes it the several certainty until is determined County are Superior of action in the Courts of Lake according opin- actually the remand in set aside to readjudicated. Accord- Court and ion following man- ingly, court heretofore issued date: judgment given, “For reason herein
the lower court is ordered set aside and the cause ordered is continued for the submission further pertaining to the final determination of evidence the judgments in each of the 124 cases which are subjects litigation, primary of this and the trial in directed fix this cause is a reasonable court attorney’s finally fee in those cases which have been finally and as the remainder are deter determined Darlington, supra, Hammond v. mined.” 536, 162 E. 2d 619 241 Ind. N. at 622. disposition below, Upon final said cases the court readjudicate directed the amount of fees paid. entitled and to appellees are order the same rehearing Petition for accordingly denied. Bobbitt, J., Landis, C. JJ., Arterburn and concur. Jackson, J., concurs the result. Reported Rehearing in 162 E. 2d 619. de-
Note. — nied 173 N. 2dE. 662.
Dunkle v. State Indiana. 29,959. April 6,
[No. Filed 1961.]