Fid. & Deposit Co. Of Md. v. Norwood, (Nos. 18372, 18373.)
| Decision Date | 01 September 1928 |
| Docket Number | (Nos. 18372, 18373.) |
| Citation | 144 S.E. 387,38 Ga.App. 534 |
| Parties | FIDELITY & DEPOSIT CO. OF MARYLAND. v. NORWOOD, Ordinary, et al. NORWOOD, Ordinary, et al. v. FIDELITY & DEPOSIT CO. OF MARYLAND. |
| Court | Georgia Court of Appeals |
(Syllabus by the Court.)
Error from Superior Court, Ben Hill County; D. A. R. Crum, Judge.
Suit by J. I. Norwood, as Ordinary, for use, etc., against the Fidelity & Deposit Company of Maryland. Judgment for plaintiff, and both parties separately bring error. Affirmed on exceptions of defendant; reversed on exceptions of plaintiff.
Underwood, Haas & Gambrell, of Atlanta, and Jay & Garden, of Fitzgerald, for plaintiff in error.
J. B. Wall and A. J. McDonald, both of Fitzgerald, for defendants in error.
BELL, J. J. I. Norwood, as ordinary, brought suit against W. D. Branch, as principal, and Fidelity & Deposit Company of Maryland, as surety, upon a guardian's bond. The suit was defended only by the surety company, and the term defendant, as used herein, will refer to that party; and, although there is a controversy as to the time when the guardianship began, we may for convenience refer to Branch as guardian, irrespective of the legal contention between the parties upon that point. After the petition and the answer were both amended, and after the court had overruled the defendant's general and special demurrers to the petition, and sustained a demurrer of the plaintiff to a part of the defendant's answer, the case was referred to Hon. Hal Lawson as auditor, and he made findings of fact and findings of law, and concluded that the plaintiff should recover. To this report no exceptions were filed by the plaintiff. Numerous exceptions to it, however, were filed by the defendant. The plaintiff moved to strike all of these exceptions, upon the ground that each of them failed to set forth the material evidence, or to point it out in the brief of evidence.
The case as thus made was submitted to the court, without a jury, for the further necessary proceedings and for final determination. The presiding judge overruled the plaintiff's motion to strike the defendant's exceptions, and, after sustaining some of the ex-ceptions and overruling others, rendered final judgment in favor of the plaintiff, and to this judgment the defendant excepted. The plaintiff also sued out a bill of exceptions, in which, besides excepting to certain antecedent rulings, he assigned error upon the final judgment, because the court refused a part of the claim as to interest.
In our view of the case, the rulings made in the opinion below are controlling, making it unnecessary to deal specifically and in detail with all of the many exceptions and assignments. In the state of the record there is no question in this court as to the existence of any basic fact as found by the auditor, though some of his inferences or conclusions, especially his conclusions of law, are drawn in question. Therefore this court is not required to determine whether any finding of fact was or was not authorized by the evidence, but the facts as they are presented by the auditor's report are to be treated as undisputed.
Two bonds of different dates are involved in the controversy, but the suit as amended appears to be predicated mainly, if not solely, upon the second bond, although the validity and effect of the first bond are matters for collateral consideration, and one of the questions to be determined is whether the guardianship dated from the execution of the first bond, or only from the making of the second bond.
The petition filed on March 24, 1925, made the following case: On February 3, 1919, W. D. Branch was, upon his petition filed in the court of ordinary of Berrien county, duly appointed guardian of the person and property of Robert Russell Branch and Felix W. Branch, minor children of the applicant and his deceased wife. Thereafter, on the same date, the applicant executed and delivered a bond as such guardian in the sum of $12,000, with Fidelity & Deposit Company of Maryland as surety thereon. This bond, as appears from a copy annexed as an exhibit to the petition, required that the principal should "well and truly perform and discbarge the duties of guardian, " and purported to have been signed by the principal and by Fidelity & Deposit Company of Maryland, by J. D. Lovett, attorney in fact.
On February 2, 1920, the said W. D. Branch, as principal, and the said Fidelity & Deposit Company of Maryland, as surety, made and delivered a bond cumulative to the first bond; the second bond being in the sum of $15,000 and conditioned as follows: That the principal should "take good and lawful care of their [his wards'] person and property, according to the laws of this state, and shall annually make a just and true return of all his actings and doings herein unto the said ordinary, and pay over all assets that may remain in his hands when said guardianship shall legally terminate." This second bond was signed by the principal and by Fidelity & Deposit Company of Maryland, by Fair Dodd, agent, and by Aaron Haas, Son & Howell, general agents. The reason for the making of the second bond was that the principal and the surety and the said J. I. Norwood, ordinary, reached the conclusion that the first bond was improperly executed, they being in doubt as to the authority of J. D. Lovett to execute said bond on the part of the surety company, and, without any citation on the part of the ordinary, the principal and surety gave said second bond "in order to cure any possible defect existing in said first bond." The surety company Branch, as guardian as aforesaid, "came into possession of the following amounts and sums, to wit: April 1, 1919, $6,000; December 3, 1919, $3,094.94; March 26, 1920, $600"—the same belonging in equal parts to Felix W. Branch and Robert Russell Branch. Robert Russell Branch reached his majority in October, 1924. Thereafter he demanded of W. D. Branch, as guardian aforesaid, the amount due him by the said Branch as such guardian. The petition prayed for an accounting and for the recovery of the aggregate amount of $9,994.94, together with interest.
The plaintiff by amendment made the following further allegations: Before bringing this suit, W. D. Branch, the guardian, had spent for his own benefit "all of said sums received for said words, " none having been spent for purposes authorized by law. Petitioner does not know when the funds were spent, except that they were spent before suit and before demand. At the time of the demand and of the bringing of the suit Branch was insolvent.
The last amendment alleges: At the making and delivery of the second bond, by Branch as guardian and Fidelity & Deposit Company of Maryland as surety, Branch as guardian "should have had the funds that had been paid to him belonging to said wards, and said wards do not know whether he actually had the cash at that time or not; but, if he did not, he was solvent and said amount could have been made by judgment and execution against the said guardian, W. D. Branch, he being worth, at that time, more than the amount that he had collected, and that, if he had already at said time spent said money, it was the duty of the said guardian to have collected said money from thesaid W. D. Branch, and the failure so to do was a breach of said bond."
As above stated, the defendant demurred generally and specially to the petition as amended, and, while the court overruled all grounds of the demurrer, both general and special, and exceptions have been duly taken to this ruling, it is not necessary, in our view of the case, to set forth the grounds of the special demurrer.
The defendant in its answer denied the authority of J. D. Lovett to execute the first bond, and also denied that it had received any premium on such bond, or had in any way ratified the act of Lovett in purporting to make and deliver the same in its behalf. The answer further alleged that, the first bond being void and of no effect, the second bond, the execution of which was admitted, could not be construed as cumulative of the first bond, and hence the defendant can be held liable only for such defaults on the part of the principal as occurred subsequently to February 2, 1020, the date of the second bond. The defendant denied that any delinquencies or defaults had been committed by the principal since the execution of the second bond, and hence contended that no breach of this bond had been committed either by Branch as principal or the defendant as surety. The court, in ruling upon the plaintiff's demurrer to the defendant's answer, struck that part of the answer in which it was alleged that the defendant could only be held liable for defaults occurring subsequently to the execution of the second bond. The answer also contained general denials sufficient to put the plaintiff upon proof, and set up by amendment other facts which are now immaterial.
From the auditor's report and the further proceedings relative thereto the following facts are to be taken as true:
W. D. Branch was the natural guardian of the minors above named, and as such was entitled to demand and receive any property belonging to them, upon his taking oath and giving bond as required by law. On February 3, 1919, he appeared before the ordinary and took the oath and filed what is described and set forth in the petition as the first bond. J. D. Lovett, who signed this bond in behalf of the bonding company,...
To continue reading
Request your trial
-
Saliba v. Saliba
... ... v. SALIBA. SALIBA v. SAME. Nos. 15844, 15845. Supreme Court of Georgia September ... 398(3), 188 S.E. 689; ... Fidelity & Deposit Co. v. Norwood, 38 Ga.App. 534(1c), ... 144 S.E ... ...
-
In re Foodsource, Inc.
...misappropriated prior to a bond's term upon the theory of continuing breach adhere to the limitation. See Fidelity & Deposit Co. v. Norwood, 38 Ga.App. 534, 144 S.E. 387, 393 (1928) quoting Aetna Indemnity Co. v. State, for use of Gallaspy, 101 Miss. 703, 57 So. 980 (1911); see also Owen v.......
-
Northwestern Mut. Life Ins. Co. v. Suttles
...182 Ga. 641(4), 186 S.E. 813; Harris v. Neuman, 183 Ga. 398(3), 188 S.E. 689; Fidelity & Deposit Co. v. Norwood, 38 Ga.App. 534(1 c), 144 S.E. 387. In of what has been said, even if the court erred in sustaining the demurrer to the 1st amendment in so far as it sought to allege administrati......
-
Fidelity & Deposit Co. of Md. v. Norwood
... ... v. FIDELITY & DEPOSIT CO. OF MARYLAND. Nos. 18372, 18373. Court of Appeals of Georgia, Second Division September 1, ... ...