Fisher v. Guidy

• Decision Date: 07 July 1932
• Parties: FISHER et al. v. GUIDY et al.
• Court: Florida Supreme Court

142 So. 818

106 Fla. 94

FISHER et al. v. GUIDY et al.

Florida Supreme Court

July 7, 1932

Suit by Florence Guidy and husband against Hilliard Williams and others, continued against A. A. Fisher, as administrator ad litem, on the death of defendant named. Decree for complainants, and defendants appeal.

Affirmed. Appeal from Circuit Court, Escambia County Thomas F. West, judge.

COUNSEL

John Lewis Reese and R. P. Reese, both of Pensacola, for appellants.

Ernest E. Mason, of Pensacola, for appellees.

OPINION

DAVIS C.

The appellees, whom we will call complainants, filed their bill of complaint in the circuit court of Escambia county against Hilliard Williams, R. Pope Reese, W. H. Kilby, Lucy Anderson Williams, and her husband, Willie Williams. It is shown by the bill that Hilliard Williams, as guardian of the complainants Florence Guidy and Lucy Anderson Williams, gave a bond conditioned as required by law, with R. Pope Reese and W. H. Kilby as sureties; that the guardian received moneys belonging to his wards, for which he made no accounting, and the bill prays for an accounting, and that the principal and sureties be required to pay complainants what, if anything might appear to be due the complainants. During the pendency of the suit, the guardian died, and A. A Fisher was appointed administrator ad litem of his estate. The bill was demurred to and the demurrers were overruled. Upon the coming in of answers, the cause was referred to a special examiner to take testimony, which was later reported to the court. Objections were filed by the administrator ad litem and the sureties to various portions of the testimony of complainants, and the cause came on for a final hearing. The court decreed the equities to be with the complainants and that they were entitled to the relief prayed for, that the objections to the testimony be severally and separately overruled, and that complainants recover of the said administrator and the said sureties the sum of $896.07, the amount found to be due the complainants, and the costs of court, and that execution issue for same. From this decree an appeal was taken, and appellants have assigned as error the overruling of the demurrers, the overruling of objections to certified copies of certain records offered by complainants, overruling of objections to certain testimony reported by the master, and the making and entry of the final decree.

The appellants base their contention that a reversal of the decree should be had because the court erred in overruling demurrers to the bill, upon the statute of limitations and laches. Their contention is untenable. So far as we are advised by the bill, the complainant Florence Guidy may have become of age or married but a short time before the filing of the bill. Furthermore, this suit is for an accounting by a guardian, who received funds in trust for his ward, Florence Guidy. The bill alleges that there has been no accounting, and that, at the time the bill was filed, the guardian was due his ward a large sum of the money received by him as such guardian and unexpended on behalf of the ward. It is not made to appear that the guardian at any time repudiated the trust. Under the circumstances, neither the equitable doctrine of laches nor the statute of limitations can be invoked to deprive the ward of her right to an accounting. It was within the power of the guardian to terminate the trust relation that existed between him and his ward by obtaining a legal discharge as such guardian when the ward became of age or married, as the case might be, or by making a direct settlement with her. So long as the trust relation existed, the statute of limitations did not begin to run, nor can the doctrine of laches be applied, for the reason that the possession of trust funds by the guardian is not adverse to the equitable title of the ward, but consistent with it. 17 R. C. L. 796; 26 R. C. L. 1364; Order of St. Benedict v. Steinhauser, 234 U.S. 640, 34 S.Ct. 932, 58 L.Ed. 1512, 52 L. R. A. (N. S.) 459, Ann. Cas. 1917A, 463; Spallholz v. Sheldon, 216 N.Y. 205, 110 N.E. 431, Ann. Cas. 1917C, 1017, and note; Barnes v. Barnes, 282 Ill. 593, 118 N.E. 1004, 4 A. L. R. 4; State ex rel. McClure v. Northrop, 93 Conn. 558, 106 A. 504, 7 A. L. R. 1014; Cavanaugh Brothers Horse Co. v. Gaston, 255 Mass. 587, 152 N.E. 623, 47 A. L. R. 1; Meck v. Behrens, 141 Wash. 676, 252 P. 91, 50 A. L. R. 207; Hinton v. Gilbert, 221 Ala. 309, 128 So. 604, 70 A. L. R. 1192; Swift v. Smith, 79 F. 709, 25 C. C. A. 154.

Mere lapse of time constitutes of itself no bar to the enforcement of an express subsisting trust. Oliver v. Piatt, 3 How. 333, 11 L.Ed. 622, 657; Speidel v. Henrici, 120 U.S. 377, 7 S.Ct. 610, 30 L.Ed. 718; Newman v. Newman, 60 W.Va. 371, 55 S.E. 377, 7 L. R. A. (N. S.) 370 and note; Stevenson v. Markley, 72 N. J. Law, 686, 66 A. 185.

Appellants have also assigned as error the overruling of objections made by them to the admission in evidence of certain pleadings and orders in a certain record in a cause wherein the court re-established the bond given by Hilliard Williams as guardian of Mrs. Guidy and her sister. It appears that a motion was made by the complainant for leave to file in evidence the files in said cause, and that the court in its final decree overruled objections thereto, and permitted the filing of such papers, but the same do not appear in the transcript. However, a certified copy of the final decree in said cause was received in evidence, and it is set out in the transcript. It is argued in appellant's brief: (1) That the suit in which the court by decree re-established the bond was not for the re-establishment of a lost paper; (2) that the statute authorizing re-establishment of lost papers was not complied with; and (3) that the said suit was for the purpose of enjoining the prosecution of an action of ejectment brought by the wards of Hilliard Williams, and that in consequence thereof, the court should not have filed and considered the record in that case. The pleadings in the case are not before us, so we are unable to determine therefrom what relief was sought by the complainants; but it appears from the decree entered therein that the said guardian and his alleged bondsmen, Reese and Kilby, were parties defendant to the cause; that a decree pro confesso was entered against the defendants; and that the bond as re-established was set out in full in the decree.

In equity, as well as at law, the rulings and judgment of the trial court are presumed to be correct, unless the record shows affirmative error. Southern Home Ins. Co. v. Putnal, 57 Fla. 199, 49 So. 922; Milinor v. Thornhill, 63 Fla. 531, 58 So. 34; City of West Palm Beach v. Ryder, 73 Fla. 558, 74 So. 603; Harp v. McRae, 100 Fla. 141, 129 So. 499; Foxworth v. Maddox (Fla.) 137 So. 161. Final judgments and decrees and certified copies thereof are admissible as prima facie evidence in the courts of this state of the entry and validity of such judgments and decrees. Section 4390, Compiled General Laws, 1927.

A decree that is shown by the record of the case to be absolutely void because the court did not have jurisdiction of the subject-matter or of the parties, may be collaterally assailed. Goodrich v. Thompson, 96 Fla. 327, 118 So 60. The judgment of a court having jurisdiction over both subject-matter and parties cannot be collaterally impeached for mere irregularity or error. The scope of the inquiry upon collateral attack is confined to jurisdictional infirmities which would render the judgment void. Fiehe v. R. E. Householder Co., 98 Fla. 627, 638, 125 So. 2; Fidelity & Deposit Co. v. Hogan (Fla.) 135 So. 825; Malone v. Meres, 91 Fla. 709, 109 So. 677. The record in the cause not being before us, we cannot say that the court was without jurisdiction to enter the decree re-establishing the bond, nor can we say what was the primary purpose of the suit in which it was rendered. The provisions of the Constitutions of 1868 (art. 6,§ 8), as amended in 1875 (article 4), and of 1885 (art. 5, § 11) relating to the...