Donnell v. Dansby
| Decision Date | 11 July 1916 |
| Docket Number | 5892. |
| Citation | 159 P. 317,58 Okla. 165 |
| Parties | DONNELL ET AL. v. DANSBY ET AL. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
A joint action may be maintained on a guardian's bond by or on behalf of two wards for an accounting and settlement, where they have a joint interest in the fund or property for which the guardian has failed to account.
Where a guardian dies without an accounting and settlement of his affairs as guardian having been made in the county court, his former wards may maintain an action in the superior or district court against his personal representatives and the sureties on his bond as guardian for such accounting and settlement.
In such action, the court has jurisdiction to state the account of the deceased guardian with his wards and may hear evidence and allow defendants any credits to which the deceased was lawfully entitled, and may determine the balance due, if any by said guardian and render judgment against the sureties therefor.
It is not necessary that a claim for a fund wrongfully misappropriated by a guardian be presented to the administrator of such guardian before an action for the recovery thereof can be maintained.
The surety upon a guardian's sale bond, where property has been sold by such guardian and the proceeds squandered, will not be permitted in an action on the bond to deny the validity of the guardian's appointment or of the proceedings resulting in the sale, nor to deny that he received the proceeds of said sale in his fiduciary capacity.
Evidence held sufficient to show execution of the bond sued on by defendant surety company.
A father who has been appointed guardian of his minor children is entitled to their custody, services, and earnings, and is charged with the duty of supporting and educating them in a manner suitable to their circumstances; and, when he cannot reasonably afford to so support and educate them, and they possess property the income of which will do so, he may under the direction of the county court, apply such income to the support and education of such minor children.
Where a father who had been appointed guardian of his minor children made no charge against them for moneys expended in their behalf, and obtained no authority of the county court to expend moneys belonging to them, no credits can be allowed therefor after his death in an action against the sureties upon his bond.
Error from Superior Court, Pittsburg County; W. C. Liedtke, Judge.
Action by Dorano Dansby and another against W. P. Donnell, as administrator of the estate of Sam Lewis, deceased, and another. Judgment for plaintiffs, and defendants bring error. Affirmed.
J. E Whitehead, of McAlester, for plaintiffs in error.
Wm. S. Rogers, of Muskogee, for defendants in error.
This action was commenced against W. P. Donnell, administrator, and the Southern Surety Company as surety upon the bond of Sam Lewis, deceased, former guardian of defendants in error, to recover the sum of $750 alleged to be due from said guardian as the proceeds of the sale of certain lands in which plaintiffs owned a one-half interest. The parties will be referred to as they appeared in the trial court. Separate demurrers to the petition were filed by defendants, which were overruled, and after issue joined trial was had to the court, at the conclusion of which the court directed a verdict for plaintiff in the sum of $500, the full penalty of the bond.
The first ground of reversal urged is that there was a misjoinder of parties plaintiff and causes of action, because it is said that there was no privity of interest between plaintiffs and that each had a separate and independent cause of action. Plaintiffs were the joint owners of the fund received from the sale of land owned jointly by them. Their father, by the same order, had been appointed guardian of both in one proceeding, had sold the land in that proceeding, and the bond sued on was given as a sale bond therein by order of the court, as a condition precedent to the making of such sale. Section 4690, Rev. L. 1910, is as follows:
In Burkett et al. v. Lehmen-Higginson Gro. Co., 8 Okl. 84, 56 P. 856, the plaintiffs, who were sureties upon the official bond of a sheriff, had paid a certain judgment rendered against him for the wrongful seizure of certain property, under a writ of attachment sued out by defendants, and had sued to recover the amount paid. One of the contentions was that plaintiffs were not entitled to jointly maintain the action. The trial court held this view and sustained a demurrer to the petition, which action was reversed by the Supreme Court. The first paragraph of the syllabus in that case is as follows:
In M. & P. Bank v. Horton et al., 27 Okl. 689, 117 P. 201, it was held that two joint makers of a note to a national bank who had separately, but from a joint fund, paid usurious interest on the note may jointly maintain an action to recover the penalty provided by section 5198, U.S. Rev. Stats. (U. S. Comp. St. 1913, § 9759). There was no misjoinder of parties or causes of action.
Neither does the fact that the guardian's account had not been settled by the county court defeat the plaintiffs' right of action. This court held in Pennington et al. v. Newman, 36 Okl. 594, 129 P. 693, that an action would not lie against an administrator nor the sureties on his bond for a breach of the bond until there had been an accounting and settlement in the county court and a decree rendered therein, showing a balance due or a breach of some other condition of the bond, and a failure upon the part of the administrator to comply with the decree entered on the settlement or accounting. In that case, the administrator was living and was within the jurisdiction of the court and within reach of its process, while here the guardian has departed this life prior to any accounting or settlement being had. The question of whether an accounting or settlement must first be had where the guardian has died, before an action will lie on the bond, has been decided differently by the courts of the various states. The rule in California is that such is not necessary. It is there held that the executors of a deceased guardian have no authority to present an account of the testator as such guardian to the probate court, nor to institute proceedings for the settlement of such account in said court; nor has the probate court any authority to exercise jurisdiction over such a proceeding. A settlement of this nature can only be obtained by a proceeding in a court of equity against the executors of the deceased guardian and other necessary parties. See In re Allgier et al., 65 Cal. 228, 3 P. 849; Reither v. Murdock, 135 Cal. 197, 67 P. 784; Zurfluh v. Smigh, 135 Cal. 644, 67 P. 1089; Woerner's Am. L. Guardianship, § 46.
The same rule also prevails in the state of Kansas. In Mitchell v. Kelly, 82 Kan. 1, 107 P. 782, 136 Am. St. Rep. 97, the right of action upon the bond of a deceased guardian, without an accounting and settlement having been had in the court having jurisdiction of such proceeding, was upheld. It was said by the court:
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Armon v. Craig
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