Gunby v. Roberts

• Decision Date: 12 May 1949
• Docket Number: No. 16625.,16625.
• Citation: 53 S.E.2d 370,205 Ga. 346
• Court: Georgia Supreme Court
• Parties: GUNBY, Ordinary, for use. v. ROBERTS.

53 S.E.2d 370

205 Ga. 346

GUNBY, Ordinary, for use.

v.ROBERTS.

No. 16625.

Supreme Court of Georgia.

May 12, 1949.

Certified questions from the Court of Appeals.

Action by Eugene Gunby, ordinary for use, etc., against G. W. Roberts on guardian's bond. The trial court dismissed the petition whereupon the ordinary sought by bill of exceptions to have the judgment reviewed by the Court of Appeals which certified certain questions to the Supreme Court.

Questions not answered.

The Court of Appeals (in Case No. 32347) certified to this court the following questions:

"1. Where a person residing in this State is appointed, qualifies, and gives bond as the guardian of the person and property of a minor ward, in a county in this State, and thereafter moves beyond the jurisdiction of the court and is residing in Miami Florida, is an action by the ordinary of the county in which the guardian was appointed, for the use of the minor ward, maintainable against the surety alone on the guardian's bond, under the provisions of the Code, § 49-237, where the petition alleges the foregoing facts and that the guardian received money belonging to the ward in the amount of $667.66, 'which it is alleged on information and belief has been wasted by the guardian for his own purposes contrary to law, ' in the absence of any allegations of demand upon the guardian for the payment of the money, and his failure to comply therewith, and where there are no prayers for the removal of the guardian or for the revocation of his letters of guardianship, and where there are no allegations that the guardian has been removed or that the guardianship has otherwise been terminated?

"2. Was a petition as set forth above subject to dismissal on an oral motion in the nature of a general demurrer on the ground that it stated no cause of action against the defendant?"

Smith, Kilpatrick, Cody, Rogers & Mc-Clatchey, Atlanta, Sidney Haskins, Atlanta, for plaintiff in error.

Alfredda Wilkerson, Wm. J. Wilkerson, Atlanta, for defendant in error.

Syllabus Opinion by the Court.

DUCKWORTH, Chief Justice.

The sole ruling of the trial judge which it is sought by the bill of exceptions to have reviewed is a judgment dismissing, on oral motion of the defendant, a petition seeking recovery in an action at law against a surety on a guardian's bond. The certified question simply enumerates material allegations of the petition and requests the Supreme Court to answer whether or not the petition was subject to dismissal...