American Surety Co. v. Hardwick

• Court: Texas Court of Appeals
• Writing for the Court: Rasbury
• Citation: American Surety Co. v. Hardwick, 186 S.W. 804 (Tex. App. 1916)
• Decision Date: 06 May 1916
• Docket Number: (No. 7509.)<SMALL><SUP>*</SUP></SMALL&gt
• Parties: AMERICAN SURETY CO. OF NEW YORK v. HARDWICK.

186 S.W. 804

AMERICAN SURETY CO. OF NEW YORK v. HARDWICK.

(No. 7509.)^*

Court of Civil Appeals of Texas. Dallas.

May 6, 1916.

On Rehearing, June 3, 1916.

Appeal from District Court, Limestone County; A. M. Blackmon, Judge.

Action by Ruby and Emmett Hardwick against M. D. Hardwick, guardian, and the American Surety Company of New York. Judgment for plaintiffs, and defendant Surety Company appeals. Affirmed.

W. T. Jackson, of Groesbeck, and Fiset, McClendon & Shelley, of Austin, for appellant. E. V. Hardwick, of Bandera, and C. S. Bradley, of Groesbeck, for appellees.

RASBURY, J.

Appellees, Ruby and Emmett Hardwick, sued M. D. Hardwick, as guardian, and appellant, American Surety Company of New York, surety on the guardian's bond, in devastavit to recover approximately $5,200. The guardian, in writing, voluntarily waived service of citation and entered his appearance in the suit, but made no defense thereto. Appellant, American Surety Company, by appropriate pleading, challenged the jurisdiction of the district court, admitted the appointment and qualification of the guardian with appellant as surety on his bond, alleged settlement and release by Emmett Hardwick from all liability to him (which was conceded by appellees in subsequent pleading), and affirmatively charged that all funds belonging to the estate of Ruby Hardwick expended by the guardian had been properly expended for her support and maintenance. In view of the issues presented on appeal, the foregoing is a sufficient statement of the pleading. A jury was waived, and upon a hearing before the district judge the plea to the jurisdiction was overruled and judgment rendered in favor of appellant on the claim of Emmett Hardwick and against appellant American Surety Company and the guardian, who has not appealed, in favor of Ruby Hardwick for $2,118.53, with interest from entry of judgment at 6 per cent. per annum. From the judgment so entered against it the American Surety Company has prosecuted this appeal.

The first issue presented is the action of the court in overruling appellant's plea challenging the jurisdiction of the court. The plea is sufficient in form and is bottomed upon the agreement of the parties that at the time the suit was commenced and at a trial the guardianship proceeding was pending in the probate court of Limestone county, and that the guardian had not been cited to file his final account therein and had not in fact filed such account. In connection with the agreed facts so recited, it appears without dispute from the evidence that Ruby Hardwick was more than 21 years of age when the suit was commenced. The precise contention of appellant is that the plea should have been sustained because the guardianship was pending and because no final account had been made by the guardian nor had he been cited to do so. The amount sued for, as disclosed by the petition, was in excess of $5,000, an amount over which the probate court had neither original nor concurrent jurisdiction. Incidentally it has been held that the county court, sitting in probate, cannot render judgment against the sureties upon a guardian's bond, for an amount found by that court to be a liability against the guardian, in excess of the amount cognizable in the county court in civil matters under the Constitution. Timmins v. Bonner & Long, 58 Tex. 554. The real contention of appellant, however, as disclosed by counsel's argument and based upon the several statutory articles defining the duties and liabilities of guardians, is, not that the county court sitting in probate may render judgment against the guardian for a sum in excess of the jurisdiction of the county court, but that it is the sole and exclusive function of that court sitting in probate to fix and establish by its judgment the status of accounts between guardian and ward, and then, and not until then, may the court in which the sum so established is cognizable entertain a suit against the surety to recover such sum. The issue is not one of first impression and has been decided adversely to appellant's contention several times. In Timmins' Case, supra, our Supreme Court ruled that upon the termination of a guardianship proceeding, however brought about, the probate court is without power to render any decree against the former guardian. Obviously such proceeding is terminated when the ward reaches his or her majority. Later, in the case of Fort v. Fitts, 66 Tex. 593, 1 S. W. 563, in adverting to the Timmins Case the Supreme Court say:

"But no stress was laid upon the fact that the amount of defalcation had been ascertained in the county court before bringing suit on the bond. On the contrary, in the cases cited as authority for the decision, it had been expressly held that it was not necessary to establish, the...