Cabell v. Mclish

• Decision Date: 21 June 1916
• Docket Number: Case Number: 7005
• Citation: 160 P. 592,1916 OK 710,61 Okla. 224
• Parties: CABELL v. McLISH et al.
• Court: Oklahoma Supreme Court

1916 OK 710

160 P. 592

61 Okla. 224

CABELL v. McLISH et al.

Case Number: 7005

Supreme Court of Oklahoma

Decided: June 21, 1916

Syllabus

1. Pleading--Demurrer--Waiver--Pleading Over.

Where a demurrer is interposed to a pleading and such demurrer sustained by the trial court and leave granted to amend, and thereafter an amendment made, such action is a waiver of the demurrer. In order to take advantage of the ruling on a demurrer when it is sustained, the party must stand upon his pleading, held to be defective, and appeal from the action of the trial court.

2. Guardian and Ward--Administration of Estate--Loans.

Where the guardian of a minor takes notes, with personal security only, without authority from the county court to make the particular loan, and without the loan being approved by the county court, and thereafter offers such notes in settlement with his successor, and they are refused and suit instituted under the direction of the county court, a tender of such notes in settlement is insufficient.

3. Guardian and Ward--Liability on Bond--Judgment Against Principal--Collateral Attack.

When the county court finds a guardian indebted to his ward in a specific sum, and directs the payment of the same, and further directs the newly appointed guardian to bring suit against the former guardian and his bondsmen, the judgment of said court rendered in said suit is final and binding upon the guardian and his sureties, and cannot be collaterally attacked when no appeal has been taken therefrom.

Error from District Court, Carter County; A. Eddleman, Judge.

Action by Reuben McLish and others against J. V. Cabell and others. Judgment for plaintiffs, and defendant Cabell brings error. Affirmed.

H. A. Ledbetter, for plaintiff in error.

Harreld & Ward and J. B. Moore, for defendants in error.

CLAY, C.

¶0 This action was brought by Reuben McLish, a minor, by his guardian, J. E. McCarty, in the district court of Carter county, Okla., against J. V. Cabell, a former guardian, and J. S. Mullen, J. P. Mullen, E. Dunlap, L. V. Mullen, and the Southern Surety Company, as sureties on certain bonds executed by said J. V. Cabell, as guardian, alleging that Cabell, as guardian of Reuben McLish, became possessed of certain funds belonging to said minor; that on July 22, 1912, an order of the county court of Carter county was entered, requiring the said J. V. Cabell to pay to his successor, J. E. McCarty, guardian of said minor, the sum of $ 4,349.18, the amount due said minor's estate; that $ 850 of said amount was paid, and plaintiff prays judgment for $ 3,574.41. Defendants answered: First, by a general denial; second, setting up the sale of certain of the minor's lands and the receipt of moneys found due, and allege certain notes were reported to the county court of Carter county; that the report of said Cabell, as guardian, was approved, attaching the report, and pleading the judgment of the county court of Carter county, and alleging tender of cash on hand and certain notes as alleged compliance with said judgment. A demurrer was sustained to the second paragraph of this answer and the defendant excepted. Trial was had to a jury, a verdict found for plaintiff, judgment entered thereon, and the defendant excepts and brings the case to this court for review.

¶1 In considering this case the parties will be referred to as they appeared in the trial court, plaintiff and defendants, respectively.

¶2 Defendants complain of the action of the trial court in sustaining the demurrer to the answer, to the first amended answer, to the second amended answer, and to the answer filed May 12, 1914. Upon sustaining the demurrers to the answer, the first amended answer, and the second amended answer, the defendants on each occasion amended.

¶3 It is well settled by numerous decisions of this court that where a demurrer is sustained to a pleading in the trial court, and such pleading is thereafter amended, the error of the court, if any, in sustaining the demurrer, is waived. In Berry v. Barton, 12 Okla. 221, 71 P. 1074, 66 L. R. A. 513, it is said:

"It is also contended by the defendants that the court erred in sustaining the demurrer interposed by the plaintiff, even as against the second defense. It is not necessary to decide in this case as to whether the second count in the answer stated a defense, for the reason that when the demurrer was sustained, the defendants were granted leave to amend, and by taking leave to amend they waived the error, if any, in the sustaining of the demurrer. In order to take advantage of the ruling on a demurrer when it is sustained, the party must stand upon his pleading, held to be defective, and not amend."

¶4 To the same effect are: Kingman & Co. v. Pixley, 7 Okla. 351, 54 P. 494; Berry et al. v. Barton et al., 12 Okla. 221, 71 P. 1074, 66 L. R. A. 513; Morrill et al. v. Casper et al., 13 Okla. 335, 73 P. 1102; Carle et al. v Okla. Woolen Mills, 16 Okla. 515, 86 P. 66; County Com'rs v. Beauchamp, 18 Okla. 1, 88 P. 1124; Pattee Plow Co. v. Beard, 27 Okla. 239, 110 P. 752, Ann. Cas. 1912B, 704; Chidsey et al. v. Ellis et al., 31 Okla. 107, 125 P. 464; Insurance Co. v. O'Neil, 36 Okla. 792, 130 P. 270; Wallace v. Blasingame, 53 Okla. 198, 155 P. 1143.

¶5 We have examined the answers filed, and think the trial court did not err in sustaining the demurrers complained of by the defendants.

¶6 Defendants...