Conrad v. Hopkins

• Decision Date: 15 May 1923
• Docket Number: 34807
• Citation: 193 N.W. 437,195 Iowa 1162
• Parties: ROSIE BELLE CONRAD, Appellee, v. MAY R. HOPKINS, Appellee, et al., Appellant
• Court: Iowa Supreme Court

193 N.W. 437

195 Iowa 1162

ROSIE BELLE CONRAD, Appellee, v. MAY R. HOPKINS, Appellee, et al., Appellant

No. 34807

Supreme Court of Iowa, Des Moines

May 15, 1923

Appeal from Pottawattamie District Court.--O. D. WHEELER, Judge.

ACTION on guardian's bond, brought by the ward, after attaining her majority, against her guardian and guardian's surety on the bond, to recover her estate. At the close of all the evidence, on motion of plaintiff, the court directed a verdict for plaintiff. Facts appear in the opinion. Defendant Konigmacher, surety, appeals.

Affirmed.

Kimball Peterson, Smith & Peterson, for appellant.

Paul E Robertson, for appellee.

ARTHUR J. PRESTON, C. J., EVANS and FAVILLE, JJ., concur.

OPINION

ARTHUR, J.

On November 16, 1915, May R. Hopkins was appointed guardian of the property of Rosie Belle Conrad. May R. Hopkins is the mother of Rosie Belle Conrad. May R. Hopkins qualified as such guardian, and filed her bond in the penal sum of $ 1,000, with C. Konigmacher, appellant, as surety. Funds belonging to the ward in the amount of about $ 500 were received by the guardian. On December 28, 1920, May R. Hopkins filed her final report. On December 29, 1920, objections to the report and application for discharge of guardian were filed by the ward, stating that she had reached her majority, and was entitled to receive the funds belonging to her that had come into the hands of her guardian; that said final report showed that there was due and owing to her the sum of $ 500, with 8 per cent interest thereon from the date of the notes referred to in the report; that she had not received any of the funds coming into the hands of her guardian; that, if the report is approved and the guardian discharged and her bond exonerated, it will deprive the ward of her estate; that the note referred to in the report, given by Frank W. Hopkins to the guardian, evidencing the loan of the ward's funds to Frank W. Hopkins, was signed by C. Konigmacher, jointly with Frank W. Hopkins; that the report shows that the guardian has defaulted in her undertaking on her bond; and that an order should be made, imposing a penalty of $ 100, as provided by Code Section 3201. Objector asked an order requiring her guardian to pay forthwith into the office of the clerk of the district court $ 500, with interest thereon, together with the penalty of $ 100, and in default of such payment by the guardian, that C. Konigmacher, surety, be ordered to pay said amounts into the hands of said clerk.

The report, with objections thereto, was by the court set down for hearing on January 5, 1921. Notice of the hearing was made upon Rosie Belle Conrad, ward, and upon C. Konigmacher, surety on the guardian's bond. Hearing was had on January 5, 1921, and the guardian and ward appeared at the hearing, and C. Konigmacher, surety on guardian's bond, appeared in person and by his counsel, Kimball, Peterson & Smith. On the hearing, the court found that it had no authority to require Konigmacher, surety on the bond, to pay into court the funds received by the guardian, as applied for in the ward's objections to the report, and the order proceeded:

"And the matter coming on for hearing on the final report, the court finds that the final report should not be approved; that the final report shows that the guardian has not accounted to the ward for funds in his hands, but has loaned the same without authority from the court, and finds that there is now due from the guardian to the ward the sum of $ 500, with interest thereon at 6 per cent from the date upon which the stock in the Stock Yards Company was sold, under the order of the court heretofore entered. It is therefore ordered that the guardian pay over, on or before the tenth day of January, 1921, the sum of $ 500, with interest, and turn over to her any and all papers, notes, and mortgages of the estate in her hands belonging to the ward, and that, unless such order is complied with within said time, that suit be brought on the bond of the guardian, in the name of the ward, who has now attained her majority."

May R. Hopkins, guardian, failed to comply with the order of the court made on January 5th, and failed to turn over to her ward the funds which had come into her hands; and on January 31, 1921, this suit was instituted against May R. Hopkins, guardian, and C. Konigmacher, surety on guardian's bond, to recover the amount of the funds belonging to the ward which had come into the hands of the guardian.

Defendant Konigmacher filed separate answer and cross-petition alleging that, shortly after May R. Hopkins was appointed guardian of her daughter, Rosie Belle Conrad, an order of court was secured, authorizing the guardian to sell certain shares of stock which came into her hands; that the stock was sold, and the $ 500 received from the sale was by the guardian loaned to her husband, Frank Hopkins; that Frank Hopkins gave the guardian his note for said amount, bearing 8 per cent interest. Konigmacher further alleged that May R. Hopkins and her husband, Frank W. Hopkins, conspired together to defraud the defendant C. Konigmacher, and to compel him to make payment of the said $ 500 for their use and benefit; that the defendant May R. Hopkins does not allege or show that she has made any effort whatever to collect said note given by her husband, Frank W. Hopkins, nor does she allege or show that she is without means, simply alleging that she is informed that he is unable to pay; that the plaintiff filed objections to the final report of her guardian, and in her objections prayed that the defendant C. Konigmacher be ordered to account to her for the money, without first exhausting her remedy against the guardian; that the guardian was present in court, stating that the ward was entitled to the money, and that she was unable to pay it, and further asking that the defendant C. Konigmacher be served with notice of hearing on final report; that, at the same time, the plaintiff appeared in court, objecting to the final report, and urging that the defendant C. Konigmacher be made to account to her for the said $ 500 and interest, and in the further sum of $ 100 as...