Faith v. National Casualty Co.

• Decision Date: 08 April 1941
• Docket Number: 45439.
• Citation: 297 N.W. 287,230 Iowa 173
• Parties: FAITH, County Auditor v. NATIONAL CASUALTY CO.
• Court: Iowa Supreme Court

297 N.W. 287

230 Iowa 173

FAITH, County Auditor v. NATIONAL CASUALTY CO.

No. 45439.

Supreme Court of Iowa.

April 8, 1941

Appeal from District Court, Harrison County; Chas. Roe, Judge.

Plaintiff as County Auditor of Harrison County, seeks in a law action to recover from surety on guardian's bond. The opinion states the facts.

Affirmed.

Carl V. Burbridge and Roy E. Havens, both of Logan, for appellant.

Swarr May & Royce, of Omaha, Neb., and Tamisiea & Tamisiea, of Missouri Valley, for appellee.

WENNERSTRUM, Justice.

The plaintiff is County Auditor of Harrison County, Iowa, and in that capacity brought an action against the defendant company who was surety on the bond of Victor F. Johnson, the former guardian of his wife, Hattie E. Johnson. Plaintiff seeks to recover from the surety the amount expended by the county for the care of the ward in one of the state hospitals for the insane.

This action was tried as a law action, but a jury was waived. At the conclusion of the presentation of all the evidence a motion for judgment against plaintiff was sustained by the court. Judgment was thereafter entered against the plaintiff. He has appealed.

Hattie E. Johnson has been a person of unsound mind for a number of years. Victor F. Johnson, her husband and former guardian was appointed as such guardian on or about September 4, 1924 and continued to act in that capacity until June 28, 1937. Marjorie Hammer and Everest W. Johnson are a daughter and a son of Victor F. Johnson and Hattie E. Johnson and are their only children. The controversy which has occasioned this litigation developes by reason of a difference of opinion as to the extent and purpose of a certain order that was entered in the guardianship proceedings on April 7, 1933. This order is in part as follows:

" It appearing to the court from the evidence introduced upon the hearing of this matter that a claim has been filed by Harrison County, Iowa, in this guardianship for the care and support of the ward herein at the Iowa State Hospital for the Insane at Clarinda, Iowa, in the amount of $2,093.51, it is, therefore, ordered that the guardian be and he is hereby expressly ordered and directed to make payment of said claim as rapidly and speedily as the condition of the funds in this guardianship will warrant and permit."

The occasion for the inclusion of the particular portion of the order quoted was by reason of a statement included in an objection filed by Marjorie Hammer to a report filed by Victor F. Johnson, guardian. In this objection it is stated: " That the said ward has been and is now committed to the State Hospital for the Insane of Clarinda, Iowa, and that the expense of the said commitment and expense of the care of said ward in said Hospital to December 31, 1931, is $2,093.51, which said amount is a charge against the estate of the said ward and should be paid and an order should be made requiring the said Guardian to apply the money in his hands to the payment of said claim, which said claim is held by Harrison County, Iowa."

It should be here stated that, as shown by the record, no formal claim at the time the order of April 7, 1933 was signed, had been filed by Harrison County, Iowa, and that no claim was filed by Harrison County in the guardianship proceedings prior to the 2d day of August, 1935. At that time the county claimed the amount due for the care of Hattie E. Johnson was $2,436.19. Thereafter an amended and substituted claim was filed by the county on June 20, 1939. The record does not disclose that any of these claims have been presented to the court for approval, allowance or consideration. And no action in relation to these claims has been taken except as has developed in this particular proceeding.

A review of the record as to the relation of the defendant to this case shows that it became surety on the bond of Victor F. Johnson on July 18, 1934. On the 21st day of October, 1936, Victor F. Johnson, the guardian, filed a report dated October 1, 1936 covering the period since July 11, 1934. In said report he states:

" This Guardian further shows the Court that he is filing a personal bond in the sum of three thousand ($3,000.00) dollars, in the said Guardianship, in lieu of the present surety company bond, (the bond furnished by the defendant), with sureties on the new bonds of Everest W. Johnson and Marjorie Hammer, who are the children of this ward and of this Guardian, said new bond to be in substitution of all bonds heretofore filed of record in said proceedings. That attached to this Report is the waiver of all persons interested in said Guardianship, waiving notice of the Hearing of the said Report, consenting that the same be approved and that the former sureties on the bonds of this Guardian be released and exonerated."

On October 20, 1936, Victor F. Johnson, the husband of the ward, and also Everest W. Johnson and Marjorie Hammer, the children signed a written waiver of notice of hearing of annual report last referred to and the same was filed October 21, 1936. This written waiver of notice is as follows:

" The undersigned, Victor F. Johnson, Marjorie Hammer and Everest W. Johnson, being the husband and the children, respectively, of Hattie E. Johnson, incompetent, do hereby each for himself and herself, expressly approve, ratify and confirm the said annual report of Victor F. Johnson, Guardian of Hattie E. Johnson, incompetent, dated October 1, 1936, together with all of the acts and doings as therein shown, hereby expressly waiving notice of the Hearing of the said Annual Report, consent that the same may be approved by the Court and that Order of Court may be entered of record as therein prayed. And the said Victor F. Johnson, Marjorie Hammer and Everest W. Johnson, for good and valuable consideration to them paid, receipt of which is hereby acknowledged, do hereby each for himself and herself, hereby release and discharge all sureties on any and all bonds of the said Victor F. Johnson, as such Guardian, heretofore filed of record in the said Guardianship, and consent that Order of Court may be entered, releasing, discharging and exonerating any and all sureties on any and all bonds of the said Victor F. Johnson, Guardian of Hattie E. Johnson, incompetent, heretofore filed of record in the said guardianship."

On October 31, 1936 an order was signed and filed in the Harrison County district court relative to this report, which in part states:

" * * * the Court further finds that the said Guardian has duly given notice of the time and place of Hearing thereon by mailing a Notice thereof to

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