Euler v. Euler
| Decision Date | 10 October 1913 |
| Docket Number | No. 8,047.,8,047. |
| Citation | 102 N.E. 856,55 Ind.App. 547 |
| Parties | EULER v. EULER. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Vanderburgh County; C. A. De Bruler, Judge.
Action by Charles Euler, as administrator of the estate of Frederick Euler, deceased, against Jacob Euler. From a judgment for plaintiff, defendant appeals. Affirmed.Louis E. Kunkel, of Michigan City, and Robinson & Stilwell, of Evansville, for appellant. Louis O. Rasch and Samuel Crumbaker, both of Evansville, for appellee.
This is an action brought by appellee, as administrator of the estate of Frederick Euler, deceased, to revoke and set aside the final settlement and current reports of appellant as guardian of said deceased, and to recover judgment against such guardian for the funds received by him. The complaint was in two paragraphs. The first paragraph was dismissed, and hence it and the pleadings addressed thereto need not be considered. A demurrer to the second paragraph for want of facts was overruled, and appellant filed an answer in three paragraphs, the second and third of which plead the six and five year statute of limitation, respectively, and were each held insufficient against a demurrer. A trial by the court resulted in a finding for appellee that the proceedings of appellant during his trust as guardian were “grounded in fraud and mistake of fact and ought to be set aside and held for naught” and that appellee recover of appellant $5,276.67. A motion for new trial and a motion in arrest of judgment were overruled and exceptions saved to each ruling. The errors relied on for reversal, and argued by appellant in his brief, present each of the above-indicated rulings on the said several demurrers to the pleadings, and the respective rulings on the motion for new trial and the motion in arrest of judgment.
The facts about which there seems to be no dispute are, in substance, as follows: On March 10, 1876, Frederick Euler, then in life, was adjudged a person of unsound mind, and appellant, Jacob Euler, a brother, was appointed his guardian and as such qualified and entered upon the performance of the duties of such trust. At that time Frederick's estate consisted of a fraction over 34 acres of real estate of the probable value of $3,000 and a yearly rental value of $100. Frederick Euler then had a living sister, Elizabeth Crass, and three brothers, viz., Charles Euler, George Euler, and said Jacob Euler. The sister and brothers constituted the sole and only persons who, at that time, would become the heirs of Frederick in case of his death, and they on the 14th day of March, following, entered into an agreement for his care and maintenance which was reduced to writing and signed by all of them except Jacob, and also signed by the husband of Mrs. Crass. The agreement follows:
“Elizabeth her X mark Crass.
This agreement was acknowledged by all the parties who signed it and was recorded March 14, 1876. At this time Frederick was living with his brother Jacob, and thereafter, until his death, remained in the home of Jacob and was there maintained and supported as provided in such agreement. Appellant failed to file any current report as guardian prior to March 10, 1886, at which time the court, on account of such failure, entered an order revoking his appointment. Later said ward was allowed a pension by the United states government, and on the 14th day of May, 1894, the appellant filed in the court of his former appointment a petition wherein he represented that said Frederick Euler had been allowed a pension and prayed that letters of guardianship be again issued to him. The prayer of this petition was granted, and letters of guardianship were again issued to appellant, and he thereupon qualified and entered upon the duties of his said trust, and from time to time filed current reports until the death of his ward, which occurred March 16, 1910. On June 15, 1910, the appellant filed his final settlement as guardian, in which he showed a balance due him of $1,400.50 in excess of all sums received by him.
The complaint, in addition to setting out the above facts, avers, in substance, that the guardian, after his second appointment, received pension money aggregating to $2,894 and rents and profits from the real estate amounting to $809; that none of this was loaned by the guardian; that all of it could have been loaned at the rate of 8 per cent. per annum; that the agreement above set out, which is filed as an exhibit with the complaint and made a part thereof, was made by said heirs for the benefit of said ward, and appellant acted thereunder and complied with the terms thereof until May 14, 1894, when he filed his petition to be reappointed guardian; that up to this time appellant made no charge nor claim for clothing, shoes, tobacco, board, washing, etc., furnished said ward; that by reason of said agreement the charges afterwards made therefor by appellant were unjust and illegal; that said ward during all of said time was physically able to earn money and appellant kept him employed and his services for said guardian were of the value of $10 per month; that in his reports as guardian appellant concealed said facts from the court; that the representations made by the guardian in his current reports and in his final report were false and untrue in law and in fact, and he was at no time entitled to charge, collect, and appropriate the ward's money for the purposes therein stated; that appellant mingled said ward's money with his own money and wrongfully and without right appropriated and converted to his own use all of the property of said ward and refused to pay the same. Appellee then asks “that all and singular reports made by said guardian *** and the orders of the court made and entered therein and thereon be set aside and held for naught, that the report in final settlement and the pretended final settlement of said guardian and the order of court confirming the same and granting a discharge to said guardian be set aside and held for naught, and that plaintiff be awarded judgment of and from the defendant in the aggregated amount of money received by him as guardian as aforesaid, together with interest thereon in the sum of $6,000.
[1] A pleading should proceed on a certain and definite theory, and its sufficiency should be judged and determined on that theory. Mescall v. Tully et al., 91 Ind. 96, 99;Terre Haute, etc., R. Co. v. McCorkle, 140 Ind. 613, 622, 40 N. E. 62;Platter v. City of Seymour, 86 Ind. 323, 326;Smith v. Roseboom, 10 Ind. App. 126, 128, 37 N. E. 559;Chicago, etc., R. Co. v. Bills, 104 Ind. 13, 16, 3 N. E. 611.
[2] The theory of a pleading adopted by the parties and the trial court will be adopted by this court on appeal, and on such theory the sufficiency of the pleading will be determined. Brink et al. v. Reid, 122 Ind. 257, 258, 259, 23 N. E. 770;Feder et al. v. Field, 117 Ind. 386, 20 N. E. 129; Lewis v. Stanley, 148 Ind. 351, 357, 45 N. E. 693, 47 N. E. 677; Flint, etc., Co. v. Beckett, 167 Ind. 491, 504, 79 N. E. 503, 12 L. R. A. (N. S.) 924;Oölitic Stone Co. v. Ridge, 169 Ind. 639, 644, 83 N. E. 246;Southern Ry. Co. v. Crone, 99 N. E. 762.
[3] It is evident from the judgment and other proceedings of the trial court hereinafter disclosed that it held the complaint sufficient as stating a cause of action under section 2925, Burns 1908, which provides as follows: ...
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