Bonham v. the People

• Decision Date: 29 March 1882
• Parties: E. BONHAMv.THE PEOPLE, for use of Wilson, Admr.
• Court: Illinois Supreme Court

102 Ill. 434

1882 WL 10247 (Ill.)

E. BONHAM

v.THE PEOPLE, for use of Wilson, Admr.

Supreme Court of Illinois.

Filed at Mt. Vernon Mar. 29, 1882.

OPINION TEXT STARTS HERE

APPEAL from the Appellate Court for the Fourth District;--heard in that court on appeal from the County Court of Wayne county; the Hon. CARROLL C. BOGGS, Judge, presiding.

This was an action upon a guardian's bond, brought in the county court of Wayne county, by appellee, against the guardian and against appellant. The declaration charges that the bond was executed by Justus Beach, guardian of Laura J. Stinnett, a minor, in the sum of $1000, with appellant as surety, dated February 22, 1861, setting out a bond in the ordinary form; that Beach was duly appointed such guardian and then entered upon his duties, and so continued to be such guardian until September, 1874, when said Laura died intestate; that on December 20, 1878, Wilson was duly appointed administrator of her estate by the county court of said Wayne county, and qualified as such. The declaration charges, as the first breach of this bond, that while he was so guardian, etc., divers large sums of money--that is, $1000, the property of said Laura,--came to his hands as such guardian, which he “disposed of to his own use,” and refused to pay the same to her in her lifetime, and still refuses to pay to her administrator. Other breaches were assigned, which, from the view taken of the case by the court, need not be stated. Process against the principal was returned not found, and the plaintiff proceeded to judgment against the surety only.

To this declaration appellant pleaded several pleas, upon some of which issues of fact were joined, and found against him, and to some of which demurrers were sustained by the court. Among the pleas thus held bad, were the following:

No. 4. And for a further plea in this behalf, the said defendant says actio non, because he says he did not, at any time within sixteen years next before the commencement of this suit, execute the said supposed writing obligatory, in the declaration mentioned, etc.

No. 9. And for a further plea to the first and fourth breaches in said declaration contained, which breaches charge the receipt of money by said guardian, said defendant says, etc., because he says that no adjustment was ever had of the accounts of said Justus Beach, as guardian of said Laura J. Stinnett, deceased, by the probate court of said Wayne county, and said guardian ordered by said court to pay to said Laura J. Stinnett during her lifetime, or to the said Wilson since her decease, any sum of money claimed to be due from said guardian, nor had said guardian ever been cited or notified to appear in said court and make a settlement of his said guardianship; wherefore, etc.

No. 10. And for a further plea, etc., because he says that said Laura J. Stinnett departed this life, to-wit, on the first day of October, 1873, within the age of eighteen years, and that this suit was not brought within one year from the time of said decease; wherefore, etc.

No. 11. And for a further plea, etc., because he says that said Laura J. Stinnett departed this life on the first day of October, 1873, within the age of eighteen years, and that her disability of minority was then removed, and that this suit was not commenced within two years after the removal of such disability; wherefore, etc.

No. 12. And for a further plea, etc., because he says that Laura J. Stinnett departed this life October 1, 1873, that said Laura would have been eighteen years old on the first day of January, 1877, and that this suit was not commenced within two years from that date; wherefore, etc.

The case was then submitted to the court without a jury. The court found the issues for the plaintiff, and assessed the damages at $1000, and entered judgment upon the finding. Defendant appealed to the Appellate Court, where the judgment was affirmed. He brings the case here by appeal from that court, and seeks a reversal, insisting that the above pleas, held bad on demurrer, were each good in law.

Mr. EDWIN BEECHER, for the appellant:

Suit can not be brought on the bond until there has been an adjustment in the probate court, or a refusal by the guardian after being legally required to do so. Stillwell v. Miller, 19 Johns. 303; Robertson v. Robertson, 1 Root, 51; Bailey v. Rogers, 1 Greenlf. 185; Critchell v. Hall, 56 N. H. 324; Smith v. Davis, 45 Id. 570; O'Brien v. Strong, 42 Iowa, 643; Nutz v. Renter, 1 Watts, 229; Wiser v. Blachley, 1 Johns. Ch. 608; Hall v. Burnstead, 20 Pick. 8; Dawes v. Bell, 4 Mass. 106; Salisbury v. Van Hoesen, 3 Hill, (N. Y.) 77; Dennison v. Cornwell, 17 S. & R. 378; Conner v. Raser, 62 Pa. St. 436; Sebastian v. Bryan, 21 Ark. 447; Graff v. Mesner, 52 Cal. 636; Tate v. Norton, 4 Otto, 746; Gilbert v. Guptill, 34 Ill. 137; Harvey et al. v. Harvey, Exr. 87 Id. 56; Matthews on Guardians, 92; 2 Redfield on Wills, 823; United States v. Curtis, 10 Otto, 123.

The third and fourth pleas of limitation of sixteen years were a bar to the action. Acts of 1849, 2d session, p. 44, sec. 1; Gilbert v. Guptill, 34 Ill. 112; Scheel et al. v. Eidman et al. 77 Id. 304; Favorite v. Booher's Admr. 17 Ohio St. 548; Cockran v. Taylor, 13 Id. 382.

After the death of the ward the action must be brought within one year. Rev. Stat. 1874, p. 676, sec. 19; Mercer's Lessees v. Selden, 1 H. 53.

The ward, if living, would be barred unless suit was brought within two years after the disability was removed. Rev. Stat. 1874, p. 676, sec. 21.

These acts of the legislature limiting to one and two years, as set forth in pleas 10, 11 and 12, are valid. Whitney et al. v. Webb et al. 10 Ohio, 522; Demarest v. Wynkoop, 3 Johns. Ch. 142; Lewis v. Lewis, 7 H. 782; Hodgen v. Henrichson, 85 Ill. 259; Morse v. Goold, 1 Kernan, 288; Cropsey v. Ogden, Id. 233; Hawkins v. Barney's Lessees, 5 Peters, 466; Ross v. Duval, 13 Id. 63; Lewis v. Admr. of Broadwell, 3 McLean, 563; Angell on Limitation, secs. 194, 476; Sedgwick on Stat. and Const. Law, 691.

Messrs. ROBINSON & JOHNS, and Messrs. CREIGHTON & SIBLEY, for the appellee:

The act of the county court in the appointment of an administrator can not be inquired into in a collateral proceeding. Wright v. Wallbaum et al. 39 Ill. 563; Diffin et al. v. Abbott et al. 48 Id. 18.

By statute it is not necessary to a recovery upon an administrator's or guardian's bond, that a devastavit shall first be established. Rev. Stat. 1874, p. 730, sec. 13, ch. 103.

The statute in force when the bond in this case was given, fixed the limitation at sixteen years, not from the execution of the bond, but after the cause of action accrued, and no action could accrue during the lifetime of the ward...