State Ex Rel. Shannon v. Hendricks Circuit Court

Dissenting Opinion.

Achor, J.

— I cannot concur in the majority opinion for three reasons: First, because of relator’s failure to comply with Rule 2-35 of this court; second, because, in my opinion, it does not appear from relator’s petition that he is in a position where, in equity, he is entitled to the extraordinary relief which he demands and, third, because, in my opinion, relator does not show himself to be free of the contempt with which he is charged.

First: With respect to petitions for writs of mandamus and prohibition, Rule 2-35 provides:

“If the relief sought relates to a proceeding in an inferior court certified copies of all pleadings, orders and entries pertaining to the subject matter should be set out in the petition or made exhibits thereto.’’

As a defense to the action for contempt, which is the primary proceedings herein, relator asserts that *142he .successfully .prosecuted an action for . divorce for Daisy Jo Maxwell and that he is retaining the property in controversy as a lien for his fees in that case.

The statute, with respect to the payment of a wife’s attorney’s fees who secures a divorce for her, is as follows:

“And on decreeing a divorce in favor of the wife, or refusing one on'the application of the husband, the court shall, by order to be enforced by attachment, require the husband to pay all. reasonable expenses of the wife in the prosecution or defense of the petition including a reasonable sum for the services of the attorney representing such wife____” [Acts 1939, ch. 160, §1, p. 738 (§3-1216, Burns’1946 Repl.)].

Since, by his own admission, relator’s sole claim to fees for which he asserts a lien on the property in controversy grows out of his services in the divorce action, and since the statute expressly, provides that the payment of such fees shall be paid by the husband by order of the court and since relator’s, response does not specifically negate such payment,, it seems imperative that the relator, at least,. provide this court with a certified copy of the record in thé divorce proceedings in order that we may have the record before us on the subject of attorney fees in the divorce proceedings. State ex rel. Wilkerson v. East (1954), 233 Ind. 657, 122 N. E. 2d 733; State ex rel. Talkington v. Hoffman (1947), 225 Ind. 475, 76 N. E. 2d 252.

Since rélatór has not . provided us with any of the record in such proceedings required by Rule 2-35, it occurs to me that his petition must be denied.

Second: Although proceedings in mandamus, and prohibition are statutory, they are. equitable, in. chair *143acter and persons who call upon this court for the exercise of this extraordinary remedy must present themselves in such a position as is required of all persons-who seek equitable relief. State ex rel. American Fletcher etc. v. Lake S. Ct. (1961), 242 Ind. 118, 175 N. E. 2d 3; State ex rel. Burton v. City of Princeton (1956), 235 Ind. 467, 134 N. E. 2d 692.

For the above; stated reason, and for the further reason, that an attorney’s retaining lien, by which relator here justifies his action, is an' equitable rexhédy, Koons, Administrator, et al. v. Beach (1897), 147. Ind. 137, 45 N. E. 601, the relator, who seeks this extraordinary equitable remedy in mandate and prohibition from this court, should first, by his petition^ demonstrate that he himself has done equity. Otherwise, upon equitable principles, this court should leave him where it finds him.

Do the facts before us demonstrate that relator has done equity in this case? As stated in the majority opinion: ..

- “Daisy Jo Maxwell was granted a divorce and -relator and Grafton J. Kivett, an attorney of . Martinsville, Indiana, who represented the defendant, James D. Maxwell, in the divorce action, were appointed Commissioners for the purpose of selling certain real estate and carrying out ;the stipulation and. agreement pursuant to the property settlement.
Relator received from himself and Kivett, as .Commissioners,- the.total sum of $35,149.33, as the amount recovered in the property settlement for and on behalf of Daisy Jó Maxwell in the form of two certified checks payable to Daisy Jó Maxwell and .relator in the total sum of $34,829.33, and $320 in cash. [My italics.] .
Relator not having been paid his fee for services rehdered in the divorce action and in connection *144with the property settlement, retained possession of the certified checks and money which he received.”

The facts above stated clearly show that, although the amounts recovered in property settlement in the divorce action were received by relator in three separate but liquid forms and amounts, relator has retained the total amount as security for his fee. Under these circumstances, even though it be conceded that relator was entitled to retain a sufficient amount of the property recovered to secure payment of the amount claimed to be due him for his services, there is absolutely no justification in the record to sustain appellant’s action in retaining all of the proceeds received in the settlement, even to the last $320 which was paid in cash. Relator does not divulge the amount of his claim for services, but we assume, and relator does not contend otherwise, that relator was not claiming all the amount received in the settlement as a fee for his services, and that at least one of the separate amounts received by him for his client should have been paid to her, notwithstanding relator’s asserted attorney’s lien. Because of these facts, it is my opinion that relator, by his own petition, has demonstrated that he has not done equity, in the case and is, therefore, not entitled to. the extraordinary equitable relief for which he now appeals to this court.

Three: It was the duty of the respondent court in this case to make such orders as were necessary for the payment of relator’s fee as attorney. Likewise, it was the duty of the respondent court to ascertain that the property of the parties in the divorce action was, in fact, paid to them by the officers of the court according to his order. In my opinion, the respondent *145court, upon being informed that none of said property reportedly paid to the divorced wife, had, in fact, been paid to her, properly permitted this action for. contempt to be brought under Acts 1881 (Spec. Sess.), ch. 38, §843, p. 240 [§4-3615, Burns’ 1946 Repl.]. Furthermore, it is my opinion that relator’s response that he held the money pursuant to an attorney’s lien did not excuse his action in retaining all of the property of his client which had been paid to him in severable amounts. In the absence of a contrary assertion, one must assume that it was not necessary for relator to retain all of said amounts to secure payment of his attorney fees. Therefore, in my opinion, relator’s return to the citation for contempt did not, upon its face, constitute a defense to the action.

For these reasons, I would deny the writ.

Note. — Reported in 183 N. E. 2d 331.