Clement v. Hughes

• Decision Date: 22 October 1891
• Citation: 17 S.W. 285
• Parties: Clement v. Hughes et al.
• Court: Kentucky Court of Appeals

17 S.W. 285

Clement v. Hughes et al.

Court of Appeals of Kentucky.

October 22, 1891

Appeal from circuit court, Crittenden county.

"Not to be officially reported."

Mary Hughes sued F. M. and I. N. Clement as sureties on her guardian's bond. Judgment for plaintiff. Defendants appeal. Affirmed.

Holt C.J.

The appellants, F. M. and I. N. Clement, who are sued by the appellee, Mary Hughes, as the sureties upon the bond of her father, J. R. Hughes, as her statutory guardian, moved the court, when the case was finally heard, to render judgment for them upon the pleadings. This motion was based upon two grounds:

1. The estate came from John Ross, the maternal grandfather of the appellee. He died intestate, and the petition avers that this took place before the death of the ward's mother, in which event she, and not the ward, inherited; and upon the death of the mother the husband became entitled, under our statute, to the personalty in his own right. It is therefore said that, although the father receipted for the money to the administrator of the grandfather as guardian, yet he was in fact only receiving his own, and therefore the sureties are not liable for it. The testimony shows beyond question that the mother died before the grandfather. She died in 1864, and he in 1867. It is manifest that the statement in the pleading is a mistake. The petition shows that the action is for money received by the father as guardian, and to which the ward was entitled from her grandfather's estate. It sets forth from whom it was received, and the amount of it. The action was tried out upon other questions. The regularity of the appointment of the guardian; whether the appellants, as his sureties, were, if bound at all, liable for certain sums; and whether the ward was chargeable for her raising,-were the issues as to which the contending parties earnestly devoted their attention. It is manifest that the appellants were not misled by the petition as to the nature and ground of the appellee's claim. Their answer so shows, and, the mistake being apparent from the face of the petition, and not therefore, misleading to the adverse party in the preparation of his case, it would be a sacrifice of substance to form to deny relief upon this ground. The substantial rights of the appellants were not affected by the mistake, which appears both from the pleadings and the testimony.

2. It is claimed the petition does not set forth the covenant of the sureties. There was no demurrer to it. This was not necessary, however, if no cause of action was stated. It is only where one is defectively stated that the adverse party must demur, or the defect will be cured by answer and judgment. It is necessary, in an action upon a writing, to aver such acts and omissions by the defendant as entitled the plaintiff to relief; and this rule is not complied with in an action against a surety, unless the petition avers the execution of the writing by him, and the substance of his agreement. In this instance the petition avers that the guardian executed bond with the appellants as his sureties and then the bond is copied as a part of the petition in haec verba. This was sufficient. Where the writing is copied, the covenant of the party of course appears, and it supplies the otherwise necessary averment as to what the obligor covenanted to do. The answer admits the execution of the bond, but from facts therein stated denies, as a legal conclusion, any liability. The motion, therefore, for a judgment upon the face of the pleadings, was properly overruled.

It is earnestly contended that, if the bond sued upon be good as a common-law one, yet it is not so as a statutory one, because it was not approved by the county court that appointed the guardian; and it is therefore said that, at most, the sureties are only liable for what the guardian actually received, and not for what, in the exercise of the diligence required by law of him, he should have received. The bond is in proper form. By its terms the sureties stipulated that the principal should faithfully discharge the duties of the trust in all respects as required by law. The order of the court relative to it is: ...