Britton v. State ex rel. Rowe

• Decision Date: 29 May 1888
• Docket Number: 13,345
• Parties: Britton v. The State, ex rel. Rowe
• Court: Indiana Supreme Court

17 N.E. 254

115 Ind. 55

Britton v. The State, ex rel. Rowe

No. 13,345

Supreme Court of Indiana

May 29, 1888

From the Montgomery Circuit Court.

The judgment is affirmed with costs.

W. H Thompson, J. West and W. B. Herod, for appellant.

M. E Clodfelter and T. E. Ballard, for appellee.

OPINION

Howk, J.

This is the second appeal to this court in this case. On the former appeal herein, the opinion and judgment of the court are reported under the title of State, ex rel., v Britton, 102 Ind. 214, 1 N.E. 617. We then held that, in the first paragraph of her complaint herein, plaintiff's relatrix, Mary L. Rowe, stated a cause of action amply sufficient to withstand defendant's demurrer thereto for the alleged insufficiency of the facts therein to constitute a cause of action. After the cause was remanded to the court below, defendant's demurrer to the first paragraph of complaint was overruled, in obedience to the mandate of this court. Defendant then answered in three paragraphs, of which the first stated a special defence, the second was a general denial of the first paragraph of complaint, and in the third paragraph of his answer he denied under oath his execution of the bond in suit. Relatrix replied by a general denial of the first paragraph of answer. The issues joined were tried by a jury, and a verdict was returned for plaintiff's relatrix, assessing her damages in the sum of $ 200; and, over defendant's motion for a new trial, the court rendered judgment on the verdict.

In this court, the only error assigned by defendant, Britton, is predicated upon the overruling of his motion for a new trial.

Plaintiff's relatrix sued herein upon a guardian's bond, alleged to have been executed by one Edward G. Rowe, as guardian of the persons and property of relatrix and others, minor heirs of Mary Rowe, deceased, and defendant Britton, as his surety therein. This bond is set out at length in our opinion on the former appeal. It was imperfect, in that the obligors therein were "bound unto the State of Indiana in the sum of ----- dollars," and was conditioned that "if the above bound Edward G. Rowe will faithfully discharge his duties as guardian of the persons and property of Henry Rowe, Mary L. Rowe, * * * minor heirs of Mary Rowe, deceased, then the above obligation is to be void, else to remain in force." In section 2516, R. S. 1881, in force since May 6th, 1853, it is provided as follows: "Such guardian's bond shall not be void on account of any informality, illegality, or defect, either formal or substantial, in the same; nor on account of any defect, informality, or illegality in the appointment of such guardian; but shall have the same force and effect as if such appointment had been legally made and such bond legally executed." In view of the provisions of this section of the statute, "touching the relation of guardian and ward," we held on the former appeal herein that a guardian's bond is valid and enforceable, even as against a surety therein, although no penalty whatever is expressed in such bond. In the opinion of the court, on the former appeal herein, after quoting such section of the statute, it is said: "This statute is as broad and comprehensive as it was possible for the Legislature to make it, and it makes all bonds effective, no matter what omissions are found to exist. It holds sureties liable for the faithful discharge of the duties of the guardian, and makes them responsible for losses arising from a breach of duty. The omission of the penalty does not invalidate the bond; notwithstanding its omission, the bond still holds the surety responsible for the acts of the guardian. The failure to prescribe the penalty leaves the surety's liability to be ascertained by determining the duty of the guardian and the loss resulting from the failure to perform it. The failure to name the penalty does not avoid the bond; it simply leaves the measurement of the recovery to be ascertained by finding the loss resulting from the failure to perform the duties enjoined by law."

We have quoted thus liberally from our opinion on the former appeal herein for the purpose of showing that a guardian's bond, however defective it may be, is rendered valid and binding on both principal and surety by force of the provisions of section 2516, above quoted, for all losses resulting from any breach of the guardian's duty.

We proceed now to the consideration of the alleged errors of law occurring at the trial, of which defendant's learned counsel complain in their exhaustive brief of this cause.

It is shown by a bill of exceptions properly in the record that, while the relatrix was introducing her evidence in chief on the trial, she "admitted in open court, and before the jury empanelled to try said cause, that she was not twenty-one years of age." Thereupon, the defendant moved the court to dismiss this cause, on the ground that relatrix was a minor, and a minor could not be a relatrix, which motion was overruled by the court, and defendant excepted. Defendant then asked leave of the court to file an additional paragraph of answer, showing the minority of relatrix, and that the fact was unknown to him and his counsel until after the trial had begun; but such leave was refused by the court, and defendant excepted. Defendant then moved the court to require that relatrix should prosecute this suit by a responsible person appearing as her next friend, which motion was overruled by the court, and defendant excepted. These three rulings of the trial court relate to the same subject and present the same questions, and may be properly considered together.

It is manifest that each of these motions of defendant is founded upon the provisions of section 256, R. S. 1881, and the construction...