Chancy v. Thweatt

• Decision Date: 05 November 1890
• Citation: 8 So. 283,91 Ala. 329
• Parties: CHANCY v. THWEATT.
• Court: Alabama Supreme Court

8 So. 283

91 Ala. 329

CHANCY v. THWEATT.

Supreme Court of Alabama

November 5, 1890

Appeal from probate court, Pike county; W. J. HILLIARD, Judge.

Watts & Son, for appellant.

CLOPTON J.

The object of this proceeding, which is instituted by appellant is to supersede and quash an execution issued on a decree rendered by the probate court on the final settlement of Thomas McCullough, as guardian of Gussie Baldwin, a minor. The proceeding is based on the alleged liability of the plaintiff in the decree, and execution for the amount thereof, by reason of having become a surety on the bond made by McCullough when he was first appointed guardian in November, 1876. Thweatt, in May, 1883, on application in writing, verified by affidavit, expressed his unwillingness to remain longer bound as such surety, and thereupon McCullough, on notice of the application, appeared in court waived an order requiring him to give a new or additional bond, and filed a bond, with D. L. Osborne and appellant as sureties, which was approved and accepted by the court, and with the proceedings ordered to be recorded. On June 1, 1889 the ward, being then over 14 years of age, nominated Thweatt as her guardian, who was qualified and appointed such guardian. Thereupon, McCullough made a final settlement of his guardianship, on which a decree was rendered, August 12 1889, against him in favor of Thweatt, as guardian, for the amount ascertained to be due the ward. On this decree, the execution, sought to be quashed, was issued against McCullough and his sureties on the new or additional bond. The statutes provide that after examination of the vouchers, and the audit and statement of the accounts of the guardian, the court must render a decree passing the same, and declaring the amount due the ward; and that all final decrees rendered against a guardian on a final settlement have the force and effect of a judgment at law, on which execution may issue against the guardian and his sureties, whether such settlement is voluntary or involuntary. Code, §§ 2463, 2464. In such case, the execution against the sureties is not founded upon any judgment or decree against them, but upon the decree against their principal, and the bond signed by them as his sureties. Smith v. Jackson, 56 Ala. 25. The decree and execution are in strict conformity to the provisions of the statutes. Their regularity and validity are not and cannot be questioned. It is...