Goble v. Simeral
| Decision Date | 21 January 1903 |
| Docket Number | 12,526 |
| Citation | 93 N.W. 235,67 Neb. 276 |
| Parties | ALLEN E. GOBLE ET AL. v. EDWARD W. SIMERAL ET AL |
| Court | Nebraska Supreme Court |
ERROR from the district court for Douglas county. Action upon guardian's bond. Plea of statute of limitations. Tried below before BAXTER, J. Judgment for defendants. Affirmed.
AFFIRMED.
L. D Holmes, J. J. Boucher, Herbert S. Crane, Thomas D. Crane and O. S. Erwin, for plaintiffs in error.
Edward W. Simeral, for himself, Charles J. Greene, Ralph W Breckenridge and J. C. Kinsler, with him.
POUND C. BARNES and OLDHAM, CC. concur.
Section 32, chapter 34, Compiled Statutes (Annotated Statutes, sec. 5402), provides that "no action shall be maintained against the sureties in any bond given by the guardian unless it be commenced within four years from the time when the guardian shall have been discharged." The question involved in this case is whether an action may be maintained against the sureties more than four years after the ward comes of age, in case the amount due from the guardian is not ascertained upon final settlement of his accounts until such period has expired. We think the question must be answered in the negative.
It appears that the statutory provision under consideration originated in Massachusetts. Afterwards it was adopted by Michigan. Thence it passed to Wisconsin, and from Wisconsin it came to Nebraska. This history is sufficiently clear from inspection of the several statutes themselves, but has been carefully worked out by the supreme court of Wisconsin in Paine v. Jones, 93 Wis. 70, 67 N.W. 31. The court say (p. 74): But long before the statute was taken over in Nebraska, the courts of Massachusetts had construed it in Loring v. Alline, 9 Cush. 68, and the construction adopted in Massachusetts has been followed since in Michigan and Wisconsin. It is a general canon of construction that if a statute adopted from another state had been construed by the courts of that state prior to its adoption here, the same construction should be given ordinarily in this state. Coffield v. State, 44 Neb. 417, 62 N.W. 875; Forrester v. Kearney Nat. Bank, 49 Neb. 655, 68 N.W. 1059; Parks v. State, 20 Neb. 515, 31 N.W. 5; O'Dea v. Washington County, 3 Neb. 118. This rule has not always been followed, however, and has been modified to some extent in recent cases.
In Nebraska Loan & Building Ass'n v. Marshall, 51 Neb. 534, 71 N.W. 63, the court declined to apply the general rule because of another provision in the statutes which indicated a different intention on the part of the legislature, and because the courts of the state from which the statute had been taken had since altered their opinion as to its construction.
Also, in Morgan v. State, 51 Neb. 672, 71 N.W. 788, it was held that the prior construction had no more force than would be allowed to a previous decision of this court construing the statute, and hence might be rejected for reasons which would require such course had the decision been rendered here originally.
In Rhea v. State, 63 Neb. 461, 88 N.W. 789, this proposition was somewhat restricted, and alteration of the statute by subsequent amendment, as to a point on which the prior construction largely rested, was held to afford ground for independent interpretation.
In view of these later decisions, we think the rule may be formulated thus: Ordinarily the adopted statute should be construed here as the courts of the state from which it was taken had construed it prior to its adoption, in the absence of any indication of a contrary intention on the part of the legislature. The decisions in Michigan and Wisconsin were subsequent to our adoption of the statute here in question, and have persuasive authority only. Myers v. McGavock, 39 Neb. 843, 42 Am. St. Rep. 627, 58 N.W. 522. For these reasons, it may be proper to treat the question as in some measure a new one, and to indicate the considerations which move us to adopt the construction given by the courts of Massachusetts.
In Loring v. Alline, supra, the court said (p. 70): "By the term 'discharged,' in this statute, is intended any mode by which the guardianship is effectually determined and brought to a close, either by the removal, resignation, or death of the guardian, the marriage of a female guardian, the arrival of a minor ward to the age of twenty-one, or otherwise." This construction is followed in Probate Judge v. Stevenson, 55 Mich. 320, 21 N.W. 348; Paine v. Jones, 93 Wis. 70, 76, 67 N.W. 31; Berkin v. Marsh, 18 Mont. 152, 44 P. 528, 56 Am. St. Rep. 565, and in effect in Harris v. Calvert, 2 Kan.App. 749, 44 P. 25. The objection urged against it by counsel is that, in effect, the former ward may be barred of his action before he is able to maintain it; that if the settlement or final accounting for any reason is delayed or protracted beyond four years, there is no remedy against the sureties. But we think the purpose of the statute was to require the accounts to be settled, so far as the sureties were to be held, with reasonable expedition and within the prescribed period. Undoubtedly, as a general proposition, courts will be loth to construe a statute so as to deprive a person of a cause of action by limitation before he is in a position to assert it. The ordinary statutes of limitations provide for this by dating the limitation from accrual of the cause of action. But here the provision is special, meant to cover a special case, and governed by special considerations.
As the court said in Hudson v. Bishop, 32 F. 519, 521, construing the statute of Wisconsin: The purpose is "to fix a time certain, for the benefit of the sureties, so that they may know definitely when their obligations as sureties will terminate." Paine v. Jones, supra. No other meaning can be given to the language used. As the court say in the case just cited (p. 76):
In Probate Judge v. Stevenson supra, the court say (p. 323): ...
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