Gentry v. Bearss

• Decision Date: 16 March 1911
• Docket Number: 16,336
• Citation: 130 N.W. 428,88 Neb. 742
• Parties: F. J. GENTRY, GUARDIAN, APPELLANT, v. SARAH A. BEARSS ET AL., APPELLEES
• Court: Nebraska Supreme Court

130 N.W. 428

88 Neb. 742

F. J. GENTRY, GUARDIAN, APPELLANT, v. SARAH A. BEARSS ET AL., APPELLEES

No. 16,336

Supreme Court of Nebraska

March 16, 1911

APPEAL from the district court for Buffalo county: BRUNO O HOSTETLER, JUDGE. Affirmed.

AFFIRMED.

Warren Pratt, for appellant.

N. P McDonald and J. N. Dryden, contra.

ROSE J. LETTON, J., not sitting.

OPINION

ROSE, J.

This is a suit to foreclose a mortgage for $ 1,000 on a residence property in the city of Kearney. When the mortgage was owned by Otto J. Worrell, a minor, his guardian, John B. Worrell, undertook to sell and transfer it to Edward J. Scott, and received therefor $ 1,010. Later the guardian converted to his own use the money thus obtained, and afterward absconded. F. J. Gentry succeeded him as guardian, and brought this suit on behalf of the ward to foreclose the mortgage, alleging that the sale to Scott was void. The defendants are Sarah A. and Sylvester Bearss, mortgagors, Frank E. and Anna L. Wilcox, subsequent purchasers of the real estate, and Edward J. Scott, purchaser of the mortgage. Each of the guardians named received his appointment from the probate court of Grant county, Oklahoma, and both of them and the ward reside in that state. The case has been twice tried in the district court. At the first trial, defenses that plaintiff had no legal capacity to sue and that Scott was the owner of the mortgage were sustained and the action dismissed. Plaintiff apppealed to this court and procured a reversal, for the reasons that plaintiff's want of capacity to sue had been waived and that the sale to Scott was void as having been made without authority of court. The facts and rulings are more fully stated in the former opinion. Gentry v. Bearss, 82 Neb. 787, 118 N.W. 1077. When the case reappeared in the district court the following facts were pleaded as a new defense: Under the statutes of Oklahoma the guardian, in the management of his ward's estate, is under the control of the county court, and pursuant to an order thereof plaintiff, before this suit was instituted, commenced an action in the district court of Grant county, Oklahoma, to recover from the defaulting guardian and the sureties on his bond the amount due from him to his ward, including the money received from Scott. That action is still pending. The second trial also resulted in a dismissal, and plaintiff has again appealed.

Plaintiff asserts that the ownership of the mortgage is the sole question in the case, that it was determined against defendants on the former appeal, and that consequently the dismissal cannot stand. It is obvious, however that a new defense has been interposed. In the former opinion it was observed: "It is not questioned but that plaintiff might have sued Worrell and his bondsmen, but the plaintiff has the right of election as to which course he will pursue, and it is not for defendants to dictate." Gentry v. Bearss, 82 Neb. 787, 118 N.W. 1077. It is now insisted by defendants that plaintiff elected to pursue the bondsmen, that he is bound by that election, and that the present suit was properly dismissed. The Oklahoma statutes applicable to this inquiry are in the record. They show that the guardian, in the management of the ward's estate, is under the directions of the county court. Gentry v. Bearss, 82 Neb. 787, 118 N.W. 1077; In re Ross, 6 Cal.App. 597, 92 P. 671. The evidence discloses that before the present suit was brought plaintiff was ordered by the county court of Grant county,...