Finney v. State ex rel. Estiss

• Citation: 9 Mo. 227
• Parties: FINNEY, ADM'R OF MCCALISTER, v. THE STATE, TO USE OF ESTISS.
• Decision Date: 31 January 1845
• Court: Missouri Supreme Court

9 Mo. 227

FINNEY, ADM'R OF MCCALISTER,

v.THE STATE, TO USE OF ESTISS.

Supreme Court of Missouri.

January Term, 1845.

APPEAL FROM ST. LOUIS CIRCUIT COURT.

GAMBLE and BATES, for Appellant. In behalf of the appellant, the following propositions are advanced: 1. The demurrer of the defendant, to the replication to the first plea, ought to have been sustained; the replication (infancy), was bad; the plea (limitation), was good. But if the plea were ill, still the declaration was bad. 2. The demurrer of the plaintiff to the 3rd and 5th pleas of the defendant, ought to have been overruled. Each one of said pleas was good, and if not, the declaration was bad. 3. The instruction moved, on the part of the defendant, and refused by the court, was a lawful and proper instruction, and ought to have been given. 4. The motion for a new trial, ought to have been granted, because the verdict was wrong, both in law and in fact. 5. The judgment as it is of record, is obviously wrong: it is for the penalty of the bond, $3,600, and also for the damages assessed on the breach, $1,799 89, and costs, and execution is awarded for the latter sum, although the defendant is an administrator.

POLK, for Appellee.

NAPTON, J.

This was an action of debt upon a bond given by Joseph Edmondson, as guardian of Edward T. Estiss, with John H. Gay and Alexander McCalister, as securities, conditioned that the said Edmondson would well and truly and faithfully discharge the duties of his office, as guardian, according to law. The suit was instituted against the appellant, Finney, the administrator of McCalister, one of the sureties. The breach assigned is, that after the execution of said bond, to-wit: on the 15th June, 1840, the said guardianship of the said Joseph Edmondson, was revoked by the County Court of St. Louis county, the said court having competent jurisdiction and authority therefor, that before, and at the time of such revocation, there was in said guardian's hands, the sum of $1,788 17, the property of the said minor; that Meredith Martin was in due form of law, appointed guardian, &c., and that although the said Joseph, should have immediately paid over to said Meredith, the said sum of $1,788 17, after the revocation of his letters as aforesaid, yet though often requested, he has not yet paid, &c.

The defendant pleaded: 1. That the demand was not exhibited for allowance within three years after the granting letters of administration. 2. That the guardianship of said Edmondson was not revoked by any lawful authority. 3. That the said guardianship was not revoked by the County Court of St. Louis, for failing to give supplementary security, or for any other good cause. 4. That said Edmondson had not at the time mentioned in the declaration, in his hands the sum of $1,788 17; and, 5. That said Edmondson was not at any time before the commencement of this suit, ordered by the County Court of St. Louis county, or any court having jurisdiction, to pay over to the said Martin, any money in his hands of the estate of said Estiss, &c.

To the first plea, the plaintiff replied, the infancy of Estiss--to which replicacation the defendant demurred, and the court overruled the demurrer. The plaintiff demurred to the third and fifth pleas, and the court, sustained the demurrer. On the second and fourth pleas issue was joined, and they were found for the plaintiff, and damages assessed at $1,799 87, and judgment rendered against the plaintiff for the penal sum in the bond, and damages aforesaid and costs de bonis propriis.

At the trial the plaintiff gave in evidence the records of the County Court of St. Louis county, showing the appointment of Edmondson, as guardian, his settlement with the County Court, showing a balance against him of $1,768 17, his removal from office on account of his being a resident of Illinois, the appointment of Martin, &c. The defendant moved for the following instruction: “The Circuit Court of St. Louis county had not the absolute power, at its discretion, to remove Edmondson from the guardianship of E. T. Estiss. The court could not remove him, except for such cause as the statute points out. And if the jury believe from the testimony, that said Edmondson was removed for no other cause than that he lived in Illinois, the removal was unlawful, and they ought to find for the defendant.” This instruction was refused; a new trial was applied for, and the motion was overruled, and exceptions duly taken and saved, to the several opinions of the court, in the progress of the cause.

The first error assigned is, the action of the court in overruling the demurrer of the defendant to the plaintiff's replication to the first plea. Admitting that the appellant is right in supposing the replication to be bad, yet if the plea is bad, the court committed no error in overruling the demurrer. The plea alleges that the suit was not brought within the three years after the granting of letters of administration. The statute directs that all demands against the estate shall be presented for allowance within three years from the date of letters of administration.^(a) It seemed from the declaration, that more than three years since the date of the letters of administration upon McCalister's estate had elapsed, before any breach of the bond signed by McCalister had occurred; and of course there was no...