Casttetter v. State ex rel. Bradburn

• Decision Date: 02 December 1887
• Citation: 112 Ind. 445,14 N.E. 388
• Parties: Casttetter v. State ex rel. Bradburn.
• Court: Indiana Supreme Court

112 Ind. 445

14 N.E. 388

Casttetter

v.State ex rel.

Bradburn.

Supreme Court of Indiana.

December 2, 1887.

Appeal from circuit court, Hamilton county; E. B. Goodykoontz, Judge.

Action by the state ex rel. Leona J. Bradburn against Peter W. Casttetter, administrator of Michael J. Casttetter, who was a surety upon the bond of the guardian of the person and estate of the relatrix. The court sustained a demurrer to defendant's answer, whereupon defendant appealed.Christian & Christian, for appellant. Stephenson & Fertig, for appellee.

Mitchell, C. J.

On the thirtieth day of January, 1873, Jacob M. Casttetter was duly appointed guardian of the person and estate of the relatrix, Leona J. Bradburn. Michael J. Casttetter became one of the sureties on the guardian's bond. The guardian died without having made a final settlement of his trust. Afterwards, Michael J. Casttetter, the surety, died, and the appellant, Peter W. Casttetter, was duly appointed administrator of his estate. This proceeding was commenced on the thirtieth day of July, 1885, by the state, on the relation of Leona J. Bradburn, against the estate of the deceased surety on the guardian's bond. The statement or complaint which was filed in the court below charged that the deceased guardian failed to account for the moneys which came into his hands, and that he had converted moneys belonging to his ward to his own use.

Without stopping to notice some objections to the complaint, which we do not think well taken, we proceed to consider the second paragraph of the answer, to which the court sustained a demurrer. This paragraph sets up that in January, 1882, the appellant's decedent, as surety on the bond of the deceased guardian, whose estate was insolvent, with the knowledge and at the request of the relatrix, she being then over 21 years of age, made and filed in the Hamilton circuit court a final report and settlement of the proceedings in the guardianship matter, which report was subsequently, in the year 1885, approved and confirmed by the court; that the guardianship was then fully and finally settled, and that the appellant's decedent was thereupon discharged by the order and judgment of the Hamilton circuit court, which judgment so entered, it was averred, remained in full force.

Can a suit be maintained on the bond while the order and judgment of the Hamilton circuit court, thus procured, remain in force? It is settled beyond controversy that the approval of a guardian's or administrator's final report and settlement is such an adjudication of all matters as were, or should have been, brought into the account and report, as precludes all collateral inquiry into the correctness thereof by parties interested therein so long as the judgment of approval remain in force. Carver v. Lewis, 104 Ind. 438, 2 N. E. Rep. 705, and cases cited; Wainwright v. Smith, 106 Ind. 239, 6 N. E. Rep. 333; Carver v. Lewis, 105 Ind. 44, 2 N. E. Rep. 714; Holland v. Fenton, 48 Ind. 391;Parsons v. Milford, 67 Ind. 489. Such adjudications are conclusive, because the law requires the guardians and administrators to make reports from time to time, and that they make final report and settlement when their respective trusts have been administered. Of the making of all such reports those interested must take notice, unless the statute makes provision that notice be given. The statute, however, makes no provision for the filing of reports and securing releases from part liability by sureties on a guardian's bond, even though the guardian be dead or has become insolvent. Ferguson v. Hagans, 90 Ind. 38-46. A surety so situate may, however, as a matter of right, institute a proceeding in some form, in the proper court, for the purpose of having the amount of his liability ascertained, and to be finally released from the bond, and from the liability already incurred, upon full payment. This might be by application or petition to the court in which the guardianship matter was pending. In such a case, due notice must have been given to those interested, or they must have appeared as in other cases, before the court could acquire jurisdiction over their persons, so as to render a valid judgment. Sureties on bonds given in the course of proceedings pending in court are so far under the protection and control of the court as that its jurisdiction may be invoked in their behalf while the proceedings are in fieri. They are in a sense parties to the proceeding. Rout v. King, 103 Ind. 555, 3 N. E. Rep. 249.

Any statement of facts by the surety which would make the jurisdiction of the court over a subject-matter within its control, with notice to the parties interested, would confer such jurisdiction over the persons and subject-matter as would render an adjudication by the court conclusive...