Brown v. Brown

• Decision Date: 01 April 1933
• Citation: 64 S.W.2d 59
• Parties: BROWN v. BROWN et al.
• Court: Tennessee Supreme Court

64 S.W.2d 59

BROWN v. BROWN et al.

Court of Appeals of Tennessee, Middle Section.

April 1, 1933.

Certiorari Denied by Supreme Court June 24, 1933.

Appeal from Chancery Court, Marshall County; Thomas B. Lytle, Chancellor.

Suit by Alexander Brown against C. M. Brown and others. From the decree, complainant appeals.

Affirmed.

P. C. Smithson, of Lewisburg, for complainant.

T. L. Coleman, of Lewisburg, and Joseph Higgins, of Nashville, for defendant.

DE WITT, Judge.

When the appellant became of age in April, 1931, his guardian owed him upon a settlement the sum of $685 with interest from October 20, 1928, the date of his last settlement. The guardian defaulted in making any final settlement and still owes him the money. The appellant filed the bill in this cause against the guardian and his two sureties and the former county court clerk. He obtained a decree against the guardian and his sureties, all of whom are insolvent; but the bill was dismissed as to the clerk.

The appellant's theory is that the clerk was negligent in 1928 in taking an insufficient bond and negligent in 1929 in failing to require the guardian to appear, make settlement, and file with him a good and solvent renewal bond; that such negligence consisted of a violation of statutory duties which the clerk owed to the appellant.

The chancellor found that in 1929, when the annual settlement was due (Shannon's Code, § 4296), the clerk notified the guardian to come in and make his settlement, as he had theretofore done. This notice was given in person and by postal card by mail, although the guardian testified that he did not receive it. However, the guardian must be presumed to have known of his duty; and the fact that he had been making annual settlements warrants the inference that he had actual knowledge of such duty. The chancellor further held that the duties of taking or accepting bonds from guardians, and seeing that they renewed their bonds or made annual settlements devolved on the chairman of the county court, or the county court under Shannon's Code, § 4267, which is as follows:

"If any court knowingly fail in the performance of its duty in regard to the renewal of guardian bonds, the justices present shall be liable themselves, both in law and equity, to the ward, for any damage sustained thereby."

The chancellor further held:

"The statutes do not require the County Court Clerk, in any instance, to appoint guardians, or approve bonds for guardians, or to renew same, and his duty is merely clerical to notify such guardians and call the Court's attention to the application of parties for such position. In order to hold either a County Judge or Chairman liable for failure of duty in the appointment, and acceptance of bonds, or renewal thereof, such conduct shall be willful and malicious upon his part in the execution of such power" — citing Boyd v. Ferris, 10 Humph. 406; Spears v. Smith, 9 Lea, 486; McTeer v. Lebow, 85 Tenn. 121, 2 S. W. 18.

The last bond given by this guardian was given in 1927 — so that a renewal bond should have been furnished in 1929 (Shannon's Code, § 4265); and upon his failure then to renew his bond, it was the duty of the court to remove him (Shannon's Code, § 4266). From the undisputed testimony of the guardian herein involved, it appears that in 1929, when he should have renewed his bond, he had property worth $2500 to $3000 in excess of his debts. Had he given a solvent bond at that time, the estate of the ward would most probably have been preserved.

The duties of the county court clerk in such matters are specified by statutes as follows (Shannon's Code): Section 4298:

"If any guardian fail, at the expiration of each successive year while he is acting, to appear and render an account of his ward's estate, the clerk shall issue a summons, returnable before himself, directed to the sheriff, or to any constable, commanding the officer to summon the guardian to appear before him in ten days after service of the summons, and render his account."

Section 4270:

"The Clerk of the county court, and the grand jury of every county, shall, at every court, present to the justices thereof [now county judge or chairman of the county court, as the case may be], in writing, the names of all guardians in the county, known to them, any of whose sureties are dead, removed out of the state, or have become insolvent."

Section 4259 vests in the county court the power to appoint guardians; section 4266 confers upon the court the power to remove them and appoint their successors. The approval of the guardian's bond is for the court. The duties of the clerk are purely ministerial.

The defendant clerk did not issue a summons to the guardian, but he cited him by mail and notified him several times to make a settlement and renew his bond, but without success; and he urged upon him the necessity of so doing. He testified without contradiction that he always prepared a list of guardian statements due each month and notified all guardians giving them four or five days of time in which to appear and comply with the law. He testified that in September, 1929, when the defendant guardian should have made a settlement and renewed his bond, he was perfectly solvent. In July, 1929, the grand jury of Marshall county reported:

"We have made thorough examination and investigation of the bonds of county officials, guardians and administrators, and report them good and solvent to the best of our knowledge and belief."

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