Euper v. State

• Decision Date: 04 November 1907
• Citation: 107 S.W. 179,85 Ark. 223
• Parties: EUPER v. STATE
• Court: Arkansas Supreme Court

107 S.W. 179

85 Ark. 223

EUPER v. STATE

Supreme Court of Arkansas

November 4, 1907

Appeal from Logan Circuit Court; Jeptha H. Evans, Judge; modified and affirmed.

Judgment affirmed.

Winchester & Martin, for appellants.

1. The complaint does not state a good cause of action, nor support the judgment. There is no allegation that creditors have been paid; no order of distribution can be made until judicial finding that the debts are paid. The order of the probate court settles nothing except the amount of liability. 47 Ark 222. There is no allegation that there are sufficient assets to complete the administration with the fund sued for; such an adjudication being the "crucial test" and "essential allegation" for liability. 5 Ark. 468; 9 Id. 226, 244; 11 Id. 12; 21 Id 405; 25 Id. 499; 27 Id. 445; 38 Id. 261; 47 Id. 222; 51 Id. 75. Besides, no bond was executed under § 161, Kirby's Digest.

2. Exhibit C is the foundation of appellee's suit and part of the pleadings, and governs the allegations in the complaint. 33 Ark. 593, 543; 53 Id. 476; 34 Id. 534, 531. The complaint therefore shows no cause of action. 47 Ark. 222; 40 Id. 442; 46 Id 260; 14 Id. 171; 5 Id. 468; 11 Id. 12, etc.

3. The judgment is excessive and void. 65 Ark. 122. The court arbitrarily gave judgment for interest from the date of the order of the probate court. This was error.Kirby's Dig. § 161.

Carmichael, Brooks & Powers, for appellees.

1. This court can easily determine the amount due each plaintiff from the record and judgment; and, if it can do so, it will affirm. 46 Ark. 266.

2. In the absence of an affirmative showing to the contrary the decision of the lower court is presumed correct. Ark. 14; Crawford's Digest, vol. 1, p. 142; 35 Ark. 438.

3. Exhibit C was no part of the complaint or pleadings. It was only part of the proof.

HART, J., HILL, C. J. dissenting. Mr. Justice WOOD concurs in this dissent.

OPINION

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. It alleged that "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 Emmett 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 Emmett Swint, less the dower of one-third, which was ordered paid to the widow, Mrs. Lizzie Swint, a copy of [which] 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.

Kirby's Digest, § 6128. provides that "if the action, counter-claim, or setoff 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 appellant's 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 administrator until the bond required by statute is given by the distributees and a demand for payment and a refusal on the part of the administrator. In every instance in this State of a case similar to this the Supreme Court in its opinions has referred to it as an action on the bond of the administrator, and his failure to perform the orders of the probate court has been assigned as a breach of the bond. Morton v. State, 25 Ark. 46; Baker v. State, 21 Ark. 405; State v. Roth, 47 Ark. 222, 1 S.W. 98; Padgett v. State, 45 Ark. 495. In the case of State v. Bartlett, 68 Mo. 581, the court said: "The breach of the bond as copied above was...