Baker v. Hanson

• Decision Date: 05 December 1924
• Docket Number: 5564.
• Citation: 231 P. 902,72 Mont. 22
• Parties: BAKER v. HANSON et al.
• Court: Montana Supreme Court

231 P. 902

72 Mont. 22

BAKER v. HANSON et al.

No. 5564.

Supreme Court of Montana

December 5, 1924

Appeal from District Court, Fergus County; Rudolf Von Tobel, Judge.

Action by Edgar J. Baker, as administrator of the estate of George Van Parker, against Herschel Hanson and others.Judgment for plaintiff, and defendants appeal.Reversed and remanded.

Gunn Rasch & Hall and U. A. Gribble, all of Helena, for appellants.

Worden & Grant, of Lewistown, for respondent.

HOLLOWAY J.

In 1918, Herschel Hanson was appointed administrator of the estate of George Van Parker, deceased, and duly qualified by taking the statutory oath and giving bond in the sum of $2,000, with John O. Seidel and Chris Christensen as sureties.In January, 1919, the court ordered the administrator to sell the real property belonging to the estate, but required an additional bond in the sum of $2,000 which was furnished, with the United States Fidelity & Guaranty Company as surety.From the sale Hanson realized $1,700, and soon thereafter left the state without accounting for the proceeds.In June, 1919, he was removed as administrator, and Edgar J. Baker was appointed in his stead.Thereafter Hanson transmitted to the court his final account which was duly approved on February 2, 1921.In the order approving the account the court determined that Hanson had received $1,700 and was entitled to credit for $1,049.14, leaving a balance of $650.86 due to his successor in office.In November, 1921, a citation was issued to Hanson and to the sureties upon each of his bonds, requiring them to appear in court on January 3, 1922, and show cause, if any they had, why Hanson should not be examined concerning ten cattle, eight horses, and some farm machinery, alleged to belong to the estate, and which he had failed to mention in his final report.Hanson, being beyond the jurisdiction of the court, could not be compelled to appear in person, but he transmitted an answer in which he denied that he had received a portion of the property and stated the disposition he had made of that portion which he did receive.

The Fidelity Company disclaimed any responsibility for the acts of Hanson in dealing with the personal property, and referred to Hanson's answer for a further return to the citation.

A hearing was had and on April 24, 1922, the court found that Hanson had received ten head of cattle, seven head of horses, and some farm machinery, belonging to the estate, of the aggregate value of $1,290, which he had converted to his own use or otherwise wrongfully disposed of, and which he had failed to mention in his final account.The court also ordered that Hanson pay over to his successor in office the sum of $1,290, and also the further sum of $650.86 found due by the order of February 2, 1921, and, if payment were not made, that the present administrator proceed by suit or otherwise to collect the amounts.Thereafter this action was commenced by Baker, as administrator, against Hanson, Seidel, Christensen, and the Fidelity Company, to recover $1,940.86, with interest.The complaint sets forth the probate proceedings in substance, and discloses that the amount demanded is made up of the two items mentioned-$650, the balance from the sale of the real property, and $1,290, the value of the personal property alleged to have been wrongfully converted.

To this complaint Seidel and Christensen interposed a general demurrer, and the Fidelity Company a demurrer, general and special.Hanson was not served with summons, and did not appear.Each of the demurrers was overruled and answers were filed, one by Seidel and Christensen jointly, and a separate answer by the Fidelity Company.Upon motion of plaintiff a portion of each answer was stricken, and a demurrer to each answer was sustained.The defendants, declining to plead further, suffered judgment to be rendered and entered against them, and appealed.

The questions presented involve a consideration of the character of the claims sued upon, the character of the bonds, and the liability of the sureties.

1.The claim for $650.86 is liquidated.When the court approved the former administrator's final account, and adjudged that there was due to the present administrator the sum of $650.86, and there was no appeal and no appropriate proceeding had to surcharge the account or to have the order modified, the adjudication fixed the liability of Hanson for that amount at least, and became conclusive upon the sureties.Botkin v. Kleinschmidt,21 Mont. 1, 52 P. 563, 69 Am. St. Rep. 641;Kenck v. Parchen,22 Mont. 519, 57 P. 94, 74 Am. St. Rep. 625;In re Smith's Estate,60 Mont. 276, 199 P. 696;Irwin v. Backus,25 Cal. 214, 85 Am. Dec. 125;Chaquette v. Ortet,60 Cal. 594.

2.The bond upon which Seidel and Christensen are sureties is the general bond of an administrator given pursuant to the requirements of section 10088,Revised Codes 1921, as a condition precedent to letters being issued.It secures the faithful performance of all the duties imposed upon the administrator, including the duty to account for the moneys coming into his hands by virtue of his office, whether received from the sale of real property or otherwise.Hughes v. Goodale,26 Mont. 93, 66 P. 702, 91 Am. St. Rep. 410;Evans v. Gerken,105 Cal. 311, 38 P. 725;24 C.J. 1064.

The bond upon which the Fidelity Company is surety is the additional bond for which provision is made in section 10089, and which may be exacted upon a sale of real property belonging to the estate.It secures the faithful performance of the duty of the administrator with respect to the conduct of the sale and the proper disposition of the proceeds, but it is not security for the acts of the administrator with respect to any other property belonging to the estate.In 24 C.J. 624, the rule is stated as follows:

"The special bond given for the sale is in the nature of additional security, and creates a liability, not for the general administration of the estate, but only with reference to the sale."Durfee v. Joslyn,92 Mich. 211, 52 N.W. 626;Burtch v. State,17 Ind. 506;Mann v. Everts,64 Wis. 372, 25 N.W. 209.

The duty of the administrator to account for the personal property or its value is secured by the general bond only; whereas his duty to account for the proceeds of the sale of real property is secured by both bonds.

It is contended, however, that the liability upon the additional bond does not attach until the penalty of the general bond is exhausted, and authorities are cited which support the contention; but in our judgment the rule which they declare should not be adopted in this state.We think it apparent from a cursory reading of section 10089 that the exaction of an additional bond upon the sale of real property is a precautionary measure designed to secure the funds derived from the sale; that the sureties on that bond and the sureties on the administrator's general bond are equally liable; and that the nature of their respective obligations is the same so far as the conduct of the sale and the disposition of the proceeds are concerned.Durfee v. Joslyn, above.

3, 4.From what has been said it follows that there is a misjoinder of partiesdefendant so far as the cause of action for the recovery of the $1,290 is concerned.There is also a misjoinder of causes of action.

Section 9130, Revised Codes, enumerates the causes of action which may be united, and concludes:

"The causes of action so united must all appear on the face of the complaint to belong to one only of these classes, and must affect all the parties to the action."

As observed before, the cause of action upon the claim for $650.86 does affect all of these parties, but the cause of action upon the claim for $1,290 does not affect the defendantFidelity Company; hence the two causes of action cannot be...