Fidelity & Deposit Co. of Md. v. Norwood
| Decision Date | 01 September 1928 |
| Docket Number | 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.
The obligee in a guardian's bond being the ordinary, a suit for a breach of the bond may be brought by that officer; and this is true, even though one of the wards may have arrived at his majority.
(a) In this action upon a guardian's bond by the ordinary as the obligee, the petition set forth a cause of action, and the court did not err in overruling the general demurrer thereto.
(b) Where from the further developments upon the trial it appears that a ruling upon a special demurrer was harmless to the party complaining of the ruling, the judgment upon the demurrer will be affirmed, notwithstanding it may have been technically erroneous at the time it was made.
(c) Where the court, on a demurrer by the plaintiff, strikes a portion of the defendant's answer, this will not result in the reversal of a final judgment in favor of the plaintiff, where it appears that the defendant was given full benefit of the defense or contention as asserted in the part of the answer so stricken.
Where the father of minor children, who inherited funds from the estate of another, was, on his petition filed in the court of ordinary, appointed guardian of their property, and where in pursuance of the appointment he took oath and gave bond, and letters of guardianship were issued to him, but where it subsequently appeared that the name of the bonding company signed to the bond by one purporting to act as its agent, was affixed thereto without its authority, and that for this reason the company was not bound, and where the bond was not signed by any other person as surety, held, that the appointment of such guardian was not absolutely void, but a guardianship existed thereunder at least from the taking of the oath and the execution of the bond.
A surety on a guardian's bond executed after the principal has converted property of his ward to his own use is liable upon the bond as for a breach of the obligations thereof, if at the time of the execution of the bond the guardian was solvent and could have made good his misappropriation, but failed to do so.
Where a guardian purchases land in his individual name from an estate in which his wards are interested, and in payment therefor issues his receipt as guardian and thus obtains the property he may be treated as the debtor of his wards to the amount of the receipt. The same is true, also, as to the amount of a receipt given by the guardian as such for the surrender of his personal note by the administrator of the estate.
Where a particular judgment is demanded by the facts under one theory of law, it will not be reversed because the judge, in rendering it, may have expressed an erronous opinion as to some alternative theory, by the application of which he arrived at the same conclusion.
There was no error in overruling the plaintiff's motion to strike the defendant's exceptions to the findings of the auditor, either of law or of fact.
This being a suit on a guardian's bond, and it appearing that the guardianship began on February 3, 1919, the plaintiff's recovery should have included interest from the expiration of one year as to all items received by the guardian in the meantime. As to the one item received by the guardian after one year, interest should have been charged from the date when the same was received.
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.
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 exceptions 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 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 discharge 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...
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