Ackerman v. Hilpert

• Court: Iowa Supreme Court
• Writing for the Court: WATERMAN
• Citation: Ackerman v. Hilpert, 108 Iowa 247, 79 N.W. 90 (Iowa 1899)
• Decision Date: 09 May 1899
• Parties: ACKERMAN v. HILPERT ET AL.

108 Iowa 247

79 N.W. 90

ACKERMAN

v.HILPERT ET AL.

Supreme Court of Iowa.

May 9, 1899.

Appeal from district court, Lee county; Henry Bank, Jr., Judge.

Action to recover upon a guardian bond. A demurrer to the petition was sustained. Plaintiff electing to stand upon the petition, judgment was rendered in defendants' favor for costs. Plaintiff appeals. Affirmed.A. J. McCreary, for appellant.

W. B. Collins and J. C. Davis, for appellees.

WATERMAN, J.

The record presents but a single question,--was the cause of action set out by plaintiff barred by the statute of limitations? The facts stated in the petition are as follows: Jacob Ackerman died in the year 1860, leaving surviving a son, George Ackerman, then some six years of age, and a widow, Margaret Ackerman. The widow was duly appointed guardian of the child. Subsequently she married the defendant Fred Hilpert. On August 15, 1870, said guardian procured an order of the proper court, authorizing her to sell certain real estate of her ward. As required by law, she executed an additional bond, and the defendants herein were sureties thereon. The real estate was duly sold. In 1875 the ward attained his majority, and in 1883 he died. The plaintiff, Margaret Ackerman, is his widow, and George L. Ackerman his son. It is claimed that Margaret Hilpert never accounted to her ward for the proceeds of the sale of the real estate mentioned. The present action was begun November 3, 1897. Upon attaining his majority, in 1875, the ward was entitled to demand an accounting and settlement by his guardian. The relation of debtor and creditor existed between them, and then the statute began to run. Wycoff v. Michael, 95 Iowa, 559, 64 N. W. 608;Humphreys v. Mattoon, 43 Iowa, 556;State v. Willi, 46 Mo. 236;Paine v. Jones (Wis.) 67 N. W. 31. The ward, having a right to an accounting upon reaching his majority, could not, by postponing a demand therefor, extend the period of limitation. Lower v. Miller, 66 Iowa, 408, 23 N. W. 897;Bank v. Greene, 64 Iowa, 445, 17 N. W. 86, and 20 N. W. 754;Mickel v. Walraven, 92 Iowa, 423, 60 N. W. 633. An action upon the bond would be barred in 10 years from the time the right accrued. Code, § 3447, subd. 7. The cause of action was therefore barred in 1885. The death of George Ackerman, before the period of limitation had fully expired, could not have the effect to toll the statute. Bishop v. Knowles, 53 Iowa, 271, 5 N. W. 139;Grether v. Clark, 75 Iowa, 385, 39 N. W. 655. Appellant's theory is that the statute does not begin to run until the guardian is ordered to account by the probate court, and, as this has not been done, the cause of action is not barred. The case of O'Brien v. Strang, 42 Iowa, 643, is cited as so holding. We may first observe that the statute of limitations was not in issue in that case. The only question there decided was that a guardian could not be sued on his bond until his accounts had been settled in the probate court and the amount of his liability fixed. But we do not think the ward, by delaying action to secure this accounting, can postpone the running of the statute. No settlement of the guardian's accounts has ever been had in the probate court in this case, but the point is not raised that plaintiff on this account has no right to maintain this action.

Some language is used in O'Brien v. Strang which lends an apparent support to appellant's contention. It was not, however, necessary to a decision of the issues before the court. But it may be well for us to say something as to the meaning of the statutory provisions involved, in view of the claims made for that case. Guardians must give bonds conditioned ...