Gaston v. Collins

• Decision Date: 09 October 1937
• Docket Number: 33356.
• Citation: 146 Kan. 449,72 P.2d 84
• Parties: GASTON v. COLLINS et al. [*]
• Court: Kansas Supreme Court

72 P.2d 84

146 Kan. 449

GASTON v. COLLINS et al. ^[*]

No. 33356.

Supreme Court of Kansas

October 9, 1937

Syllabus by the Court.

The judicial business of probate court must be conducted in orderly fashion in regular monthly terms (Gen.St.1935 20-1103).

When monthly term of probate court has ended, decision or judgment of that court is a finality and is not open to correction in that court on ground of alleged irregularity in procuring it.

Where probate court entered order discharging guardian and releasing his bondsmen, it could not alter record after term so as to set aside such discharge and release by ex parte order, and such original order of discharge and release was good defense to action to subject bondsmen to liability arising from guardian's unauthorized loans.

Where examination of entire record on appeal disclosed that plaintiff could in no event prevail, judgment for defendants was directed.

1. In an action to subject the sureties on a guardian's bond to liability for alleged diminution of the ward's estate through unauthorized loans of money by the guardian, the record examined, and held, that the probate court's order discharging the guardian and releasing his bondsmen, as pleaded in defendants' answer, was not subject to collateral attack, and constituted a good defense to the new matter pleaded in plaintiff's reply thereto.

2. Rule applied that, when an examination of the entire record shows that in no event can the plaintiff prevail, the litigation should be ended and judgment ordered.

Appeal from District Court, Mitchell County; William R. Mitchell Judge.

Action by E. Gaston, administrator of the estate of Arthur B Collins, against George C. Collins, Allen H. Motes, and Carl H. Hartman, wherein the last two named defendants filed a cross-petition. From an adverse judgment, defendants appeal.

Reversed and rendered.

Frank A. Lutz and A. E. Jordan, both of Beloit, for appellants.

Leon W Lundblade, of Beloit, for appellee.

DAWSON Chief Justice.

This was an action to recover a money judgment against the defendant sureties on a guardian's bond.

The record consists of a petition, an amended petition, an answer and cross-petition, an amended reply, a supplemental answer, a second amended reply, summarized statements concerning certain exhibits in these pleadings, and copies of letters more or less pertinent, from all of which, with the help of the briefs, the essential facts of the case may be stated as follows:

On December 31, 1926, one Arthur B. Collins of Mitchell county, an ex-soldier, was adjudged to be insane, and on January 1, 1927, his brother George C. Collins, defendant herein, was appointed guardian of his estate by the probate court of Mitchell county. Defendant gave bond signed by himself and his mother. Arthur Collins had some money which the defendant guardian loaned without the approval of the probate court, to wit:

(1) On August 7, 1931, he loaned $325 to Norman Wehl, taking a note therefor.

(2) On September 21, 1931, he loaned $1,365 to Norman Wehl, taking a note therefor.

In 1932, Arthur Collins, the ward, became entitled to certain pension moneys from the United States government, and it required defendant to give an additional guardian's bond for the faithful administration thereof. The probate court made an order accordingly, and in obedience thereto George C. Collins, as principal, and Allen H. Motes and Carl H. Hartman, as sureties, executed the required bond, dated May 12, 1932, in the sum of $2,000, and the probate court approved it the same day.

Thereafter defendant continued to handle his ward's funds about as he had theretofore done:

(3) On August 7, 1933, he accepted a new note from Norman Wehl in payment of the earlier one for $325 dated August 7, 1931.

(4) On February 21, 1933, he made a loan of $1,467.38 to Norman Wehl, taking a note and chattel mortgage therefor.

(5) On August 7, 1933, he made another loan of $370.50 to Norman Wehl, taking a note therefor.

On October 4, 1933, defendant George C. Collins filed in the probate court his verified final account as guardian, tendered his resignation, and asked to be discharged, and that his bondsmen be relieved of liability. Whether this final account was approved and his resignation formally accepted and his request to be discharged as guardian allowed are contested matters in this lawsuit. The accuracy of the record, so far as it bears on these questions, is challenged.

However, on October 4, 1933, the probate court orally accepted defendant's resignation as guardian, and on the same day R. Gaston was appointed to serve in his stead.

The next matter shown on the record is Exhibit I, as follows:

"Order of Discharge.

"Now, On this 10th day of May, 1934, comes George C. Collins, Guardian of Arthur B. Collins, insane, and presents the foregoing final report, and asks that the same may be approved, and an order discharging him from the trust, and the release of his bondsmen; and the same having been carefully examined is found to be a just and true account of his guardianship; the same is therefore approved, and it is ordered that he pay over to the said newly appointed guardian all of the property of said Arthur B. Collins, insane, the balance due, as shown by said report, taking his receipt therefor, and, on filing the said receipt in this court, that he be discharged from the trust and his bondsmen released from liability.

"Whereupon, Comes George C. Collins, Guardian, and files herein the receipt of said -- for the sum of money due him as shown by the final report of said guardian, as heretofore ordered, and he is hereby discharged as guardian, and his bondsmen released from further liability, this 10th day of May, 1934.

"J. M. Rodgers,

"Probate Judge."

Two days later, on October 12, 1934, the new guardian, E. Gaston, executed to defendant a receipt "for the balance due" as shown by defendant's final report as guardian, and this receipt was filed in the probate court.

Subsequently E. Gaston, as guardian, with the knowledge and approval of the probate court, filed an action against Norman Wehl in the district court of Mitchell county to recover on the notes given by him, evidencing the loans of money made to him by Collins, guardian, as narrated above. During the pendency of that action, Arthur B. Collins died; and E. Gaston was appointed and qualified as administrator of his estate; and the action against Norman Wehl was revived in the name of E. Gaston, administrator, as substituted plaintiff.

On February 15, 1935, the present action was begun against George C. Collins as principal and the defendants Motes and Hartman as sureties on the bond they had executed on May 12, 1932. Plaintiff alleged that the various sums of money Collins as guardian had loaned to Norman Wehl, as narrated above, had been made without the approval of the probate court, and that the moneys of the ward had thereby been diminished in the sum of $2,117.23; and that defendant Collins was liable therefor, and that the defendant sureties Motes and Hartman were liable therefor to the limit of their bonded obligation, $2,000.

Later, on October 14, 1935, plaintiff filed an amended petition, the allegations of which were to the same effect as in the original petition, but containing an additional allegation as follows: "That the defendant George C. Collins was the duly appointed, qualified and acting guardian of such insane person but at the present time has resigned, but that his final report has not been approved nor his bond released. That the said George C. Collins resigned on the 4th day of October, 1933. That there was no formal order of acceptance by the Probate Court, final report approved or bondsmen released, but plaintiff herein was appointed to act as guardian upon the Probate Court's oral acceptance of such resignation." (Italics ours.)

The defendant sureties Motes and Hartman filed a demurrer to the amended petition which was overruled. They then answered with a general denial, questioned the legal sufficiency of the petition, admitted that defendant had served as guardian of Arthur Collins' estate, and that he had resigned on October 4, 1933, and that his resignation had been accepted at that time.

Defendants further answered that on October 4, 1933, Collins had rendered his final account as guardian and filed it in the probate court, and requested an order discharging him and releasing his bondsmen; that on May 10, 1934, his final account was approved by the probate court; that he was ordered to turn over all property of his ward in his hands to his successor in office, and that he promptly obeyed that order; and that thereupon the probate court made a written order discharging defendant as guardian and releasing his bondsmen from liability. The order of discharge referred to in defendants' answer is the one set out above.

Defendants answered further that the order of discharge was a final order, that it had never been appealed from, that such order was res judicata, and that any right of action which plaintiff may have had against defendants was barred by the statute of limitations.

Defendants' answer further pleaded the facts of the action between Gaston, Guardian (Gaston, Administrator, substituted), v. Norman Wehl, to recover on the notes given to evidence the loans complained of, and alleged that the commencement of that action with the knowledge and approval of the probate court operated to estop the plaintiff administrator to claim that the loans to Norman Wehl were illegal; that said notes had been inventoried by the plaintiff administrator as part of the assets of the estate of Arthur B. Collins, deceased, and such inventory had been filed in the probate court.

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