Bombeck v. Bombeck
| Decision Date | 25 May 1885 |
| Parties | MATILDA BOMBECK, Respondent, v. DANIEL F. BOMBECK, Appellant. |
| Court | Missouri Court of Appeals |
APPEAL from Buchanan Circuit Court.--HON. WM. H. SHERMAN, J.
Affirmed.
Statement of case by the court.
This controversy grows out of a citation issued by the probate court of Buchanan county to the defendant, Daniel F. Bombeck, as guardian and curator of the plaintiff, Matilda Bombeck, to appear before said probate court and make settlement. The history of the case is substantially as follows: In March, 1879, the defendant was, by said probate court, appointed guardian and curator of the person and estate of the plaintiff in said county. The plaintiff was the daughter of J. W. Bombeck, who died in the state of Colorado prior to the date last above named. By his last will he bequeathed to his said daughter certain live stock in Colorado, and designated the defendant as testamentary guardian, with certain directions as to the management of said stock, and the time of the payment of the bequest to plaintiff. It does not appear whether said will was admitted to probate or not. At all events the said guardian in 1880 initiated measures for the displacement of the executor or administrator of said estate in Colorado; which resulted in his removal. His widow and the defendant were appointed administrators de bonis non, of the estate by the proper court of El Paso county in said state. In December, 1879, the defendant received from and receipted for to said administrators, as guardian, etc., of the plaintiff, the sum of $1,207.05. In April, 1880, a citation was issued by the probate court of Buchanan county to the defendant to appear and make settlement as such guardian, etc. In June following he appeared and made a lengthy return in writing to said citation, setting out in detail the history of said bequest, and the action taken by him for the removal of the executor in Colorado, begun in April, 1880, and claiming that he had expended certain moneys in and about the said undertaking. He also set up that the plaintiff attained her majority in September, 1880, and that the last trip he made to Colorado on said business was in October, 1880, after the plaintiff came of age, and that he went at her special instance and request, as her agent and not as her guardian and curator. He admitted the receipt of the money as hereinbefore stated, for which he receipted as guardian, etc., of the plaintiff, and alleged that he was willing to account to her therefor, provided she would make him certain allowances for money paid out on his trips to Colorado, and for his services and time. The return then stated that the defendant had received no other property of the ward.
The plaintiff made reply to this return, denying generally some of its statements, and averring that the defendant in his settlement with the estate, under the administration proceedings in Colorado, was allowed pay for the moneys and time claimed to have been expended by him as aforesaid, and also denied that he made said trips and rendered said services at her instance and request as her agent, but that he collected the money as guardian, etc.
On hearing before the probate court, the court found that the defendant had received and receipted for said money as the guardian and curator of the plaintiff, and after making him certain allowances for moneys paid out and expended in and about the Colorado trips and contests had there, found him indebted to the plaintiff in the sum of $931.05, on which sum the court allowed interest from the 20th day of January, 1880, to the 20th day of July, 1880, and directed the judgment to bear that rate of interest until paid.
The defendant prosecuted his appeal to the circuit court; where on a trial, de novo, the court, in effect, affirmed the judgment of the probate court. Thereupon, so it is claimed by appellant, he filed motion for new trial, which went over to the following term of court. On hearing said motion the court, by way of recitation in the record, modified its finding on a remittitur entered by the plaintiff, so as to charge the defendant only six per cent. interest on the money from January 20, 1880, in view of the fact that the plaintiff was of age when the defendant received the money.
From this judgment the defendant has appealed to this court.
VINTON PIKE, for the appellant.
I. No money, property or effects came to the possession of defendant during the minority of Matilda. The only liability with which she seeks to charge him in this proceeding is in respect to the fund of $1207.05, which the decree finds he received “after the said Matilda, his late ward, had attained her majority, as stated in his return to the citation herein.” Upon the majority the relation of guardian and ward ceased. In reNicoll, 1 Johns Chan. Rep. 23; Jones v. Ward, 10 Yerger 160; State v. Rosswaag, 3 Mo. App. 20. Afterwards any money received, was received, not as guardian, but to be paid over. He could be sued for it in a court of law. Ball v. Towson, 4 Watts & Serg. 568; cited and adopted in Coleman v. Willi, 46 Mo. 237. When the relation of guardian and ward ceased the jurisdiction of the probate court ceased. The jurisdiction of that court extends only to his accounts as guardian and not to contracts between him and plaintiff after termination of guardianship. Timmons v. Bonner, 58 Texas 554.
II. The return to the citation for settlement shows that defendant went to Colorado after Matilda had attained her majority, at her special request, who urged him to go as her agent when informed his duty to go as guardian existed no longer. Because this statement was found true the court compelled plaintiff to remit that part of the ten per cent. interest, in excess of six per cent. But plaintiff could not claim interest from the time of receiving the money (at either rate), but only after having a reasonable time to invest it; and as agent only from the time of demand upon him. Lent v. Howard, 89 N. Y. 180. And as agent, see Beardslee v. Boyd, 37 Mo. 180; Polk v. Allen, 19 Mo. 467; Burgess v. Case, 52 Mo. 43; State v. Mooney, 65 Mo. 494.
III. If defendant is trustee under the will of J. W. Bombeck, then the judgment is wrong, for plaintiff is not entitled to the estate till she arrives at the age of twenty-four. She was in her twenty-first year at the date of the decree.
STRONG & MOSMAN, for respondent.
I. The record shows that motion for new trial was filed in this case, and was overruled, but “there being no bill of exceptions in the case” this court Sweet v. Maupin, 65 Mo. 72; Peck v. Childers, 73 Mo. 484. This is a summary proceeding, under the statute, in which there are no formal pleadings. The purpose of the proceeding is to ascertain the state of his accounts; this depends on the estate in his hands and the money received and disbursed.
II. The defendant admits his appointment as guardian by the probate court of Buchanan county in March, 1879. That court had jurisdiction of the settlement of accounts of guardians appointed by it. Any irregularity in proceedings had by it must be taken by objection and exception and preserved by motion for new trial, or motion in arrest of judgment and a bill of exceptions. Bank v. Allen, 68 Mo. 474; State v. Robinson, 79 Mo. 66.
III. The cases cited by appellant do not hold that in no case can a guardian be made to account in the probate court for moneys received by him, after the majority of his ward, belonging to her. He must show that under no circumstances is such a judgment permissible. If defendant received this money under color of his office, the law will not permit him to say that he did not receive it as guardian. U. S. v. Nicolls, 4 Cr., U. S. C. C. Rep. 290; U. S. v. Bender, 5 Cr., U. S. C. C. Rep. 620; Martin v. Stevens, 30 Miss. 159; Miss. Co. v. Jackson, 51 Mo. 23; State v. Powell, 44 Mo. 436; Dix v. Morris, 66 Mo. 518; State ex rel. &c., v. Williams, 77 Mo. 468.
IV. Defendant did not file his bill of exceptions within the time, nor does he file transcript as required by law. It is his fault that the evidence cannot be presented for review. In such case the presumption is in favor of the propriety of the action of the trial court. Birney v. Sharp, 78 Mo. 73.
V. The appeal is without merit and ten per cent. damages should be awarded.
Opinion by PHILIPS, P. J.
I. The respondent claims that the judgment of the circuit court should be affirmed because the appellant has failed to have the transcript of the record filed in the supreme court (from which court the case has been transferred here under the amendment of the state constitution organizing this court), within the time prescribed by statute. The appeal was perfected in the circuit court at such time as to make it returnable to the October term, 1882, of the supreme court, but the transcript was not filed in the supreme court until the 11th day of December, 1882. Aside from the grounds of excuse presented in affidavits by appellant's counsel for the delay, we think the application for affirmance comes too late, and that the respondent has not brought herself within the terms of the statute entitling her to the affirmance.
The respondent might have made this motion at the October term, 1882, of the supreme court, but she has slept on her rights two and one-half years, permitting five terms of the court to pass without moving in the matter; thereby, by her own laches, allowing the appellant to regard his appeal as completed. Superadded to this, she does not make this suggestion for affirmance until the case is ready for hearing in this court, and does not file as the basis of her application either a transcript of the record of the circuit court, as required by the general statutes, or the certification of the circuit clerk, as required by the act of 1883. She ought not thus to be...
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