Aetna Accident & Liability Co. v. Langley
| Decision Date | 14 May 1918 |
| Docket Number | 8948. |
| Citation | 174 P. 1046,68 Okla. 283,1918 OK 288 |
| Parties | ETNA ACCIDENT & LIABILITY CO. v. LANGLEY et al. |
| Court | Oklahoma Supreme Court |
Rehearing Denied July 23, 1918.
Syllabus by the Court.
In an action against the principal and surety on a guardian's additional bond given before the sale of real estate of the ward, brought by a subsequent guardian appointed as the successor of such principal, to recover the amount of the proceeds of the sale appropriated by the principal to his own use, the surety will not be permitted to deny the validity of the appointment of either guardian on the ground that the court did not have jurisdiction to appoint his principal as guardian.
County courts in the exercise of general probate jurisdiction have not the inherent power to release the sureties on a guardian's additional bond given before sale of real estate of the ward from liability thereon, but only such power in the premises as may be expressly conferred by statute.
Section 6580, Rev. Laws 1910, impowers the judge of the county court to release sureties on a guardian's bond from future liability only, but not from liability on account of the antecedent default of the guardian.
An order of the county court releasing the surety on such guardian's bond from liability for an antecedent default of the guardian is a nullity.
In an action against a surety on a guardian's bond, discharged by release from subsequent but not previous defaults of the guardian, the default of the guardian being established, the burden is on the surety to show that the default did not occur prior to the release.
A surety on a guardian's bond, in the absence of fraud or collusion, is concluded by the decree of the county court on the hearing and settlement of the final report and accounts of the guardian as to the liability of the principal.
Error from District Court, Jefferson County; Cham Jones, Judge.
Action by Matilda Sarah Langley, a minor, by her guardian, W. E Alexander, against Sam L. Langley and others and the AEtna Accident & Liability Company. Judgment for plaintiff, and the Aetna Accident & Liability Company alone brings error. Affirmed.
Bridges & Vertrees, of Waurika, and Everest & Campbell, of Oklahoma City, for plaintiff in error.
R. H Brown, Probate Atty., and J. B. Moore, both of Ardmore, for defendants in error.
Ames Chambers, Lowe & Richardson, of Oklahoma City, amicus curiae.
Sam L. Langley was appointed by the county court of Jefferson county guardian of the person and estate of Matilda Sarah Langley, a minor. His bond as such guardian, with C. L. Langley and J. E. Langley as sureties, in the sum of $1,500 was approved by the court. Thereafter, having obtained an order for the sale of real estate belonging to his ward, he was required to give an additional bond to the county judge in the sum of $7,000, conditioned to sell the real estate in the manner and account for the proceeds of the sale as required by law, which bond, with plaintiff in error, AEtna Accident & Liability Company, as surety, was executed and approved. Subsequently the said Sam L. Langley was removed and presented his final account and report as such guardian. On the 21st day of June, 1915, the said account and report coming on for settlement and allowance and after hearing thereon, the court found that the guardian had received from the sale of the land of his said ward the sum of $2,500, which he immediately appropriated to his own use and benefit, and charged his account with said sum and interest thereon at the rate of 6 per cent. per annum. The account was also charged with certain other items not involved in this appeal. The court adjudged the said Sam L. Langley to be indebted to his said ward on the said final settlement in the sum of $3,812.50, including, among others, the said item of $2,500 and interest thereon. W. E. Alexander was thereafter appointed by the county court of Jefferson county the successor of said Sam L. Langley as the guardian of the person and estate of the said minor, and he duly qualified as such. The amount adjudged to be due by the said Samuel L. Langley to his former ward on the final settlement not having been paid, this action was instituted pursuant to an order of said county court by the said minor by and through her said guardian, W. E. Alexander, as plaintiff below, against the plaintiff in error, AEtna Accident & Liability Company, and the defendants in error, Samuel L. Langley, C. L. Langley, and James E. Langley, as defendants below, to recover the said amount of the said Samuel L. Langley as principal and the other defendants below as sureties on his several bonds before mentioned. The plaintiff in error answered, setting up various defenses, the other defendants making default. There was judgment in the court below against all defendants therein. The judgment against the said AEtna Accident & Liability Company was for the sum of $2,962, being the said sum of $2,500 found by the county court on the settlement of the accounts of the said Samuel L. Langley as due by him to his said ward on account of the misappropriation of proceeds of the sale of his ward's land, together with interest thereon to the date of the judgment. Motion for new trial having been overruled, the AEtna Accident & Liability Company alone brings the cause here, and to secure a reversal of the judgment against it assigns many errors. The assignments of error are grouped in the argument and discussed under four propositions which we will consider, instead of the several assignments of error in detail.
The plaintiff in error undertook to assail the order of the county court of Jefferson county appointing Samuel L. Langley as guardian and W. E. Alexander as his successor, on the ground that the court did not have jurisdiction, for the reason, as alleged, that at the time said Samuel L. Langley was appointed the said minors were actual residents of Love county, Okl. It is not claimed that the alleged jurisdictional defect appears upon the face of the record. It is well settled by the previous decisions of this court that an order of the county court appointing a guardian of a minor, being one of a court of general jurisdiction in probate matters, cannot be collaterally attacked by evidence aliunde. Langley v. Ford, 171 P. 471. Moreover the surety upon a guardian's additional bond executed before the sale of the real estate of his ward, where the property has been sold, will not be permitted in an action on the bond to deny the validity of the guardian's appointment. Donnell v. Dansby, 159 P. 317. The attack by plaintiff in error on the jurisdiction of the court to appoint either Langley or Alexander as guardian, being in effect only a denial of the validity of the appointment of its principal as guardian, was not permissible in this action. We do not think there is any merit in the contention that the minor, having by her guardian ad litem in another action unsuccessfully assailed the regularity of the appointment of the guardian on jurisdictional grounds, is now estopped to assert through her proper representative the liability of the plaintiff in error upon the bond. We therefore conclude that there was no error in the proceedings in the court below in this regard.
The plaintiff in error contends that it was exonerated and discharged from liability as surety on the bond sued upon by an order of the county court of Jefferson county made and entered on the 20th of December, 1912. The order, so far as pertinent to this bond, was as follows:
The order was made after the sale had been confirmed and after the guardian had been authorized by order of the court to invest the proceeds in other real estate for the benefit of his ward. While the order discharging the bond was vacated by the county court in the order of June 21, 1915, settling the final accounts of the guardian, we pass over as immaterial the question as to whether the subsequent order is void as against the surety who had no notice of the...
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