Corcoran v. Kostrometinoff

• Decision Date: 12 October 1908
• Docket Number: 1,560.
• Citation: 164 F. 685
• Parties: CORCORAN v. KOSTROMETINOFF.
• Court: U.S. Court of Appeals — Ninth Circuit

164 F. 685

CORCORAN v. KOSTROMETINOFF.

No. 1,560.

United States Court of Appeals, Ninth Circuit.

October 12, 1908

E. M Barnes, for appellant.

Malony & Cobb, for appellee.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

GILBERT Circuit Judge.

The appellee, George Kostrometinoff, as guardian of John P Corcoran, a minor, filed his final report and petition for discharge as such guardian with the United States commissioner, who was ex officio probate judge for the Sitka commissioners' precinct, Alaska. Exceptions to the account were interposed on behalf of the ward. The exceptions were overruled, the account approved, and an order was made discharging the guardian. An appeal was taken to the District Court for the District of Alaska, Division No. 1, at Juneau. Upon the appeal the District Court filed findings of fact, in which the objections to the account were considered and overruled, and the court found as a conclusion of law that the appeal should be dismissed. In accordance therewith a decree was entered dismissing the appeal and allowing the guardian his costs on the appeal. From that decree the present appeal is taken.

The rights of the parties on the appeal are not affected by the fact that the District Court, upon findings which should have led to a decree affirming the decision of the commissioner's court, entered instead thereof a decree of dismissal.

The appellee moves to dismiss the appeal to this court on the ground that, although the order allowing the appeal was made on January 8, 1908, the appeal bond was not filed until March 2, 1908. The omission to give a bond for costs at the time of taking the appeal is not ground for dismissal, provided that the bond be filed within a reasonable time thereafter, and especially is this true where, as in this case, the appellee is in no respect prejudiced by the delay in filing the bond.

Anson v. Railroad Co., 23 How. 1, 16 L.Ed. 517; Davidson v. Lanier, 4 Wall. 447, 18 L.Ed. 377; Seymour v Freer, 5 Wall. 822, 18 L.Ed. 564; Schenck v. Diamond Match Co., 73 F. 22, 19 C.C.A. 352. The appellee urges as further ground of dismissal the insufficiency of the assignments of error. We find the assignments sufficiently specific to direct our attention to the single question involved on the appeal which we find it necessary to discuss. The motion to dismiss is denied.

On November 7, 1892, in pursuance of an order made by the commissioner's court, the guardian deposited with the Northwest Loan & Trust Company, a banking institution at Portland, Or., $3,899.76 of the money of his ward for the term of one year, and received therefor a certificate of deposit showing that the amount was deposited to the credit of 'George Kostrometinoff, Guardian, etc.,' and that interest was to be paid thereon at the rate of 6 per cent. per annum. On July 27, 1893, the bank went into liquidation, and no more than 10 per cent. of the amount so deposited was ever received by the guardian. It is contended on behalf of the ward that the court erred in crediting the guardian's account with the full amount so deposited, and that the guardian, having dissipated $3,500 of the trust fund, is chargeable therewith. While a mere error of judgment will not subject a guardian to personal liability for the loss of his ward's funds, he is, nevertheless, held to the exercise of prudence and sound discretion in investing the same, and it is uniformly held that, if he loan his ward's money without security, he assumes the entire risk no matter what may have been the credit of the borrower. Walker v. Walker, 42 Ga. 135; Clark v. Garfield, 8 Allen (Mass.) 427; Probate Judge v. Mathes, 60 N.H. 433; Wycoff v. Hulse, 32 N. J. Eq. 697; Lee v. Lee, 55 Ala. 590.

While the effect of an order of court...