Euper v. State

• Decision Date: 04 November 1907
• Citation: 107 S.W. 179
• Parties: EUPER et al. v. STATE, to Use of SWINT et al.
• Court: Arkansas Supreme Court

107 S.W. 179

EUPER et al. v. STATE, to Use of SWINT et al.

Supreme Court of Arkansas.

November 4, 1907.

Appeal from Circuit Court, Logan County; J. H. Evans, Judge.

Action by the state, for the use of Lizzie Swint and others, against W. L. Euper and others on his bond as administrator of the estate of Fred Swint. Judgment for plaintiffs, and defendants appeal. Affirmed, with modifications.

Winchester & Martin, for appellants. Carmichael, Brooks & Powers, for appellees.

HART, J.

This suit is an action on the bond of W. L. Euper, administrator of the estate of Fred Swint, deceased. The original complaint was filed May 17, 1906. A demurrer to it was filed August 22, 1906. The record does not disclose that any disposition was ever made of this demurrer. On December 28, 1906, an amended complaint was filed, which is set out in full: "Fred Swint departed this life February, 1899, whether testate or intestate does not appear, leaving him surviving his widow, Lizzie Swint, and two minor heirs, Ethel and Emmett, of the respective ages of 13 and 6 years, and at the time of his death he owned about $2,000 in personal property. That on the 27th day of January, 1900, the defendant W. L. Euper was by the Logan probate court appointed administrator of the estate of the said Fred Swint, deceased, and on the same day said W. L. Euper filed his bond as such administrator in the sum of $3,000, with B. Fible and R. P. Harris as sureties, and took charge of said Fred Swint estate. * * * That on the 11th day of February, 1902, the probate court ordered said administrator to file a new bond in said estate, which was done on the 26th day of May, 1902, with Isaac Peck, Robert P. Harris, and Benno Stein as sureties. * * * That on the day of ____, 190___, J. W. Skinner was by the probate court of the Southern district of Logan county appointed and qualified as guardian of the minors, Ethel and Emmet Swint. That on the 27th day of August, 1904, said administrator filed settlement, and the court found that he was indebted to said estate in the sum of $970.17, and ordered said amount paid over to the qualified guardians of said minors, Ethel and Emmet Swint, less the dower of one-third, which was ordered paid to the widow, Mrs. Lizzie Swint. A copy of said order and judgment of the probate court is hereto attached and made a part hereof, and marked `Exhibit C.' That the defendant W. L. Euper has now for more than 12 months neglected, failed, and refused to pay said plaintiffs the said amounts so ordered by the said probate court. Wherefore plaintiffs pray judgment against W. L. Euper and his sureties on his administrator's bond in the said sum of $970.17, together with the interest thereon at the rate of 10 per cent. per annum from August 27, 1904, until paid, and all their costs herein laid out and expended." There was a judgment by default in favor of plaintiffs, and defendants appealed.

The only question for consideration of the Supreme Court, upon a defendant's appeal from a judgment by default duly rendered against him, is whether the allegations of the complaint are sufficient to authorize the judgment. Benton v. Holliday, 44 Ark. 56. Section 6128, Kirby's Dig., provides that "if the action, counterclaim, or set-off is founded on a note, bond, bill or other writing as evidence of indebtedness, the original copy thereof must be filed as a part of the pleading." Counsel for appellants claim that Exhibit C, the order of payment made by the probate court, is the foundation of appellee's action, and is therefore a part of the pleadings, and governs the allegations in the complaint. If appellees' contention is true, the cause should be reversed; for, if the Exhibit C controls the averments of the complaint, no valid order of payment is alleged. But we do not regard the order of payment as the foundation of the action. It is a suit on the bond of an administrator.

In a suit on an administrator's bond in the case of Phillips v. Governor, 2 Ark. 382, the court said: "The injuries resulting from the nonperformance of the condition of the bond do not appear until some special breach or breaches are suggested and assigned. * * * The breaches assigned are considered as the gravamen or real foundation of the recovery." The probate court may make an order of payment within two years after the date of letters of administration, but no cause of action arises on the bond of the...