Gronna v. Goldammer

• Decision Date: 13 October 1913
• Citation: 143 N.W. 394,26 N.D. 122
• Parties: GRONNA v. GOLDAMMER.
• Court: North Dakota Supreme Court

26 N.D. 122

143 N.W. 394

GRONNA

v.GOLDAMMER.

Supreme Court of North Dakota.

Sept. 22, 1913.

On Petition for Rehearing, Oct. 13, 1913.

Syllabus by the Court.

Payment by one of the cosureties on a bond after the claim against him has been barred by the statute of limitations is voluntary, and does not entitle him to contribution from his cosureties.

Section 8284 of the Revised Codes of 1905, which provides that “no action can be maintained against the sureties on any bond given by a guardian unless commenced within three years from the discharge or removal of the guardian,” etc., construed and held that, in order that the statute of limitations may begin to run, it is necessary that a formal order of the court discharging or removing the guardian shall have been made.

Additional Syllabus by Editorial Staff.

As used in Rev. Codes 1905, § 8284, providing that no action can be maintained against the sureties on a guardian's bond unless commenced within three years from the guardian's discharge, the word “discharge” means a formal discharge by the court.

On Petition for Rehearing.

A cause of action implies a right to begin an action, and some one who has a right to sue, and some one who may be lawfully sued. It involves both a subject of action and a person who is able and permitted to assert it.

A ward, even after he has attained his majority, has no right of action against either his guardian or his sureties until an accounting has been had in the county court.

Section 6787, R. C. 1905, which provides for a six-year statute of limitations in certain cases, has no application to a suit brought against the sureties upon a guardian's bond.

Before a remedy will be barred because of laches, there must appear, in addition to mere lapse of time, some circumstances from which the defendant or some other person may be prejudiced, or there must be such lapse of time that it may be reasonably supposed that such prejudice will occur if the remedy is allowed.

Among the duties of a guardian, the faithful performance of which his bond is given to secure, are those of making timely and proper accountings. The sureties upon his bond have an equal right with the ward to institute proceedings for such. They are therefore not in a position to complain, if the operation of section 8284, R. C. 1905, which provides that no action can be maintained against such sureties unless commenced within three years from the discharge or removal of the guardian, is deferred by reason of the failure of the guardian to file his final account and obtain such discharge, even though the ward may have taken no steps to compel the same.

Appeal from District Court, Nelson County; Templeton, Judge.

Action by A. J. Gronna against Frank Goldammer. From a judgment for defendant, plaintiff appeals. Reversed and remanded, and rehearing denied.

On August 6, 1900, plaintiff and defendant executed a statutory bond of one Frank Miller, as guardian of Mary J. Miller, minor, under appointment of the county court of Nelson county; said bond being conditioned, among other things, that the said Miller should well and truly account for and pay over the property and estate of said ward when and as it should become his duty so to do, and when and as he should be directed and ordered by the county court. The ward married in April, 1903, and became of age on June 13, 1903. Miller failed to account for the property in his possession, or to file the inventories required by law, and on January 20, 1910, the ward brought an action against the plaintiff and defendant, Frank Goldammer, who were sureties upon the bond of the guardian, Miller, to recover the full penalty thereof. In this action Goldammer interposed the defense of the statute of limitations (section 8284, R. C. 1905), and as to him the action was dismissed by the court on January 8, 1912, for lack of prosecution. The plaintiff, Gronna, however, defaulted, and a judgment was rendered against him for the sum of $550, the penalty of the bond and costs. This judgment he paid, and then brought this action against his cosurety, Goldammer, for contribution and for half of sum so paid by him. The defense of Goldammer in the action was that the statute of limitations had run against the claim of the ward at the time of the bringing of the action against him and his cosurety, and that, as plaintiff had failed to avail himself of such defense, his payment of the judgment against him in that action was, so far as his cosurety was concerned, a voluntary payment, and that he therefore was not entitled to contribution. The trial court held in accordance with defendant's contention, and that section 8284, R. C. 1905, was a complete defense to the original suit, and that, as the defendant, Goldammer, had availed himself of it, and that plaintiff had not, the latter was not entitled to contribution. It, therefore, dismissed the present action on its merits, and with costs. Plaintiff has appealed to this court.

Scott Rex, of Grand Forks, for appellant. Frich & Kelly, of Lakota, for respondent.

BRUCE, J. (after stating the facts as above).

[1] It appears to be the general rule and to be conceded by both parties that “payment by one of the cosureties after the claim against him has been barred by the statute of limitations is voluntary, and does not entitle him to contribution from the other cosureties.” 32 Cyc. 282; Cocke v. Hoffman, 73 Tenn. (5 Lea) 105, 40 Am. Rep. 23;Shelton v. Farmer, 72 Ky. (9 Bush) 314;Cochran v. Walker, 82 Ky. 220, 56 Am. Rep. 891;Letcher v. Yantis, 33 Ky. (3 Dana) 160;Wheatfield Twp. v. Brush Valley Twp., 25 Pa. 112;Bell v. Morrison, 1 Pet. 351, 7 L. Ed. 174;Turner v. Thom, 89 Va. 745, 17 S. E. 323;Van Keuren v. Parmelee, 2 N. Y. 528, 51 Am. Dec. 322.

[2] Section 8284 of the Revised Codes of 1905 provides, among other things, that: “No action can be maintained against the sureties on any bond given by a guardian unless commenced within three years from the discharge or removal of the guardian.” The question for determination is, Did the coming of age or the marriage of the ward, ipso facto, work a removal or discharge of the guardian so as to put the statute of limitations in motion? The pertinent provisions of the Code of North Dakota upon the subject are as follows:

“Sec. 4139. The power of a guardian appointed by a court is suspended only: (1) By order of the court; or (2) if the appointment was made solely because of the ward's minority, by his attaining majority; or (3) the guardianship over the person of the ward by the marriage of the ward.

Sec. 4140. After the ward has come to his majority he may settle accounts with his guardian and give him a release, which is valid if obtained fairly and without undue influence.

Sec. 4141. A guardian appointed by a court is not entitled to his discharge until one year after the ward's majority.”

“Sec. 8067. An executor, administrator or guardian may at any time present to the county court a petition praying that his accourt may be settled and that a decree may thereupon be made revoking his letters and discharging him accordingly. The petition must set forth the facts upon which the application is founded; but the application shall not be entertained while a proceeding is pending for the removal of the executor, administrator or guardian or if in the opinion of the judge there is good cause for his removal or other sufficient cause for refusing to entertain the same.

Sec. 8068. If the court entertains such application, a citation must issue to all parties interested in the estate. At the hearing any creditor or other person interested may allege cause for denying the application or allege cause for his removal and pray relief accordingly. Upon a trial of the issue if the court determines that sufficient cause exists for granting the application the petitioner must be allowed to account; and after he has fully accounted and paid over all money which is found to be due from him to the estate and delivered over all books, papers and other property of the estate in his hands as the court directs a decree shall be made discharging him and revoking his letters, otherwise such decree shall be made as justice requires.”

“Sec. 8242. Every guardian so appointed shall have the custody and care of the education of the minor and the care and management of his estate until such minor arrives at the age of majority, or marries, or until the guardian is legally discharged.” “Sec. 8282. The marriage of a minor ward terminates the guardianship; and the guardian of an insane or other person may be discharged by the judge of the county court when it appears to him on the application of the ward or otherwise that the guardianship is no longer necessary.”

“Sec. 8063. A petition alleging the facts and praying for the removal of an executor, administrator or guardian pursuant to the provisions of the preceding section may be presented by a creditor or other person interested in the estate and may contain a prayer for the appointment of a successor and if the court deems the allegations sufficient a citation shall issue to the executor, administrator or guardian and all other persons who by the terms of a will or by law are entitled to any portion of the estate.

Sec. 8064. When the facts which authorize a removal come to the knowledge of the court and no application is made as above provided, the court may make an order requiring the executor, administrator or guardian to show cause why he should not be removed, upon which he shall be cited to appear; and at the hearing the court may revoke his letters as upon a petition, and upon the removal of any such executor, administrator or guardian the court shall appoint a successor.”

“Sec. 8284. No action can be maintained against the sureties on any bond given by a guardian unless commenced within three years from the discharge or removal of the guardian; but if at the time of such discharge the person entitled to bring such...