American Bonding Co. v. Logan

• Court: Texas Court of Appeals
• Writing for the Court: Bookhout
• Citation: American Bonding Co. v. Logan, 132 S.W. 894 (Tex. App. 1910)
• Decision Date: 10 December 1910
• Parties: AMERICAN BONDING CO. OF BALTIMORE v. LOGAN et al.

132 S.W. 894

AMERICAN BONDING CO. OF BALTIMORE v. LOGAN et al.

Court of Civil Appeals of Texas.

December 10, 1910.

Appeal from District Court, Dallas County; E. B. Muse, Judge.

Action by John A. Logan and others against the American Bonding Company of Baltimore. Judgment for plaintiffs, and defendant appeals. Reformed and affirmed.

Meador & Davis, for appellant. Wood & Wood, for appellees.

BOOKHOUT, J.

On December 31, 1908, the plaintiff, John A. Logan, filed suit against the American Bonding Company of Baltimore, seeking to recover the sum of $1,000 with interest thereon, from November, 1900, to date, on the ground that W. J. Logan, father of the plaintiff, John A. Logan, qualified as guardian of the person and estate of said John Logan, giving bond, in terms required by law in the sum of $4,000, with the American Bonding & Trust Company of Baltimore, the predecessor of the American Bonding Company of Baltimore, as surety; that thereafter said guardian collected the sum of $1,000 belonging to said John A. Logan and had failed and refused to turn over, or account to said plaintiff for said sum, or any part thereof; that on May 3, 1908, said W. J. Logan died, and that his surety, American Bonding Company of Baltimore, was liable for said sum of money, with interest.

The defendant, American Bonding Company of Baltimore, replied by plea of abatement setting up that on or about September 17, 1908, the county court of Dallas county, sitting in probate, had heard and approved the final account of W. J. Logan, guardian, deceased, filed by and through his representative, R. H. Lee, administrator of the estate of W. J. Logan, deceased; that on said date there was a final judgment rendered and later entered by the county court of Dallas county, Tex., a court of competent jurisdiction, fully and finally releasing and discharging the estate of W. J. Logan, deceased, and his surety, American Bonding Company of Baltimore, from all liability on account of the said guardianship; that said final judgment had never been appealed from and had never been set aside in any manner provided by law.

The defendant further filed a general demurrer, special exceptions, general denial, and also set up the judgment of the county court of Dallas county, releasing said surety and its principal, and that on September 3, 1908, and after said plaintiff reached his majority and before said final order was entered by the county court of Dallas county, Tex., said plaintiff executed and delivered, for a valuable consideration, a release in due form, releasing and discharging the estate of W. J. Logan, deceased, and his surety, American Bonding Company of Baltimore, from any and all liability whatsoever, on account of said guardianship. The defendant, American Bonding Company of Baltimore, further filed a cross-bill against the estate of W. J. Logan, of which R. H. Lee is administrator, setting up the fact that it was surety of said W. J. Logan, now deceased; that before executing said bond by said American Bonding Company, as surety, said W. J. Logan agreed in writing to hold said company harmless and protect it against all loss sustained by reason of making said bond; and asked for judgment over against the estate of W. J. Logan, deceased, for such an amount, if any, as the plaintiff might recover against said bonding company. The estate of W. J. Logan, deceased, of which R. H. Lee is administrator, did not answer the cross-bill, but adopted the plea in abatement filed by said defendant, and later amended and amplified said plea; and further pleaded fully and particularly the matters and things set out by the American Bonding Company; and, finally, all the pleadings filed by the estate of W. J. Logan, deceased, of which R. H. Lee is administrator, were adopted by the defendant, American Bonding Company, in addition to and as supplemental to its pleadings. The plaintiff by his several additional and supplemental pleadings says that the judgment of the county court of Dallas county, Tex., releasing and discharging the estate of W. J. Logan, deceased, and the surety, American Bonding Company, from all liability, is void and of no force and effect, and that the court did not have jurisdiction to enter such judgment; that the release executed by the plaintiff was without consideration, and, if not obtained by fraud, it was through mistake, and therefore the plaintiff was not bound by said release. The trial court overruled the plea in abatement filed by the defendant, American Bonding Company, on the ground that the county court of Dallas county did not have jurisdiction to enter the final judgment, but sustained the plea in abatement as to the estate of W. J. Logan, deceased, of which R. H. Lee is administrator. On the trial of the case on its merits, the court set aside the release executed by the plaintiff, and rendered judgment for John A. Logan against the American Bonding Company for the sum of $1,720 with interest, and gave judgment for the estate of W. J. Logan, deceased, and against the defendant, American Bonding Company, on its cross-bill, to all of which actions of the court the defendant bonding company excepted and perfected an appeal.

The trial court filed his conclusions of fact and law wherein it found, among other things, that W. J. Logan, the father of John A. Logan, the plaintiff in this suit, and his sister, Jessie Logan, was on the 13th day of November, 1900, by the county probate court of Dallas county, appointed guardian of the estates of his said son and daughter, and on the same date entered into a bond in the sum of $4,000 with the appellant as surety; that the occasion for this appointment was that the mother of John and Jessie had recently died, leaving two policies of insurance of $1,000 each, which were payable on the mother's death to her son and daughter, John and Jessie, who were minors; the guardian, W. J. Logan, during the year 1900 collected both of said policies; that W. J. Logan continued as such guardian until his death—May 3, 1908. One-half of the $2,000 collected by W. J. Logan belonged to this appellee, and the appellee never at any time received any part of the $2,000, or any benefit therefrom during the lifetime of his father, and his father never at any time, in any way, accounted to the probate court or to appellee for said money, or any part thereof. The guardianship was pending and unsettled at the time of the death of the guardian. Said money could have been loaned and kept loaned by the guardian. Appellee arrived at the age of 21 years on September 2, 1908. On May 19, 1908, W. Lindsay Bibb was, by the probate court of Dallas county, appointed guardian of the estate of appellee. In July, 1908, R. H. Lee was by the same court appointed administrator of the estate of W. J. Logan. The only property that ever came into the hands of R. H. Lee belonging to said minors, as administrator of said estate, was a promissory note for $344.30, which was the property of John and Jessie Logan, and payable to them or their guardian. The said W. J. Logan left a small homestead in Dallas to his surviving second wife and children. The said W. J. Logan, at the time of his death, owed debts and his estate was insolvent. W. Lindsay Bibb, the second guardian of John A. Logan, on September 3, 1908, the next day after John arrived at the age of 21 years, filed with the said court his final account showing that no funds had come into his hands, and that he had personally advanced for his ward's benefit some $78, and stating that there were some funds in the hands of R. H. Lee, administrator of W. J. Logan's estate, belonging to J. A. Logan, sufficient to pay the said $78 and cost of guardianship, and asking an order directing the administrator to pay said $78 and costs, and prayed for a final discharge. Said final account was sworn to by appellee, John A. Logan, and the ward waived citation and agreed that the guardianship might be closed. On the 17th day of September thereafter the probate court approved the account, and further ordered that the administrator pay said guardian's account out of funds belonging to John A. Logan in his possession, and finally discharging the guardian, Lindsay Bibb. The administrator, R. H. Lee, on the 17th day of September, 1908, also filed a report or statement in the guardianship case, showing that the only property belonging to the minors, John and...