Jarnagin v. Garrett

• Decision Date: 21 February 1934
• Docket Number: No. 4441.,4441.
• Citation: 69 S.W.2d 511
• Parties: JARNAGIN et al. v. GARRETT et al.
• Court: Texas Court of Appeals

69 S.W.2d 511

JARNAGIN et al. v. GARRETT et al.

No. 4441.

Court of Civil Appeals of Texas. Texarkana.

February 21, 1934.

Rehearing Denied March 1, 1934.

Appeal from District Court, Rains County; L. L. Bowman, Judge.

Suit by Elmer H. Jarnagin and another against H. D. Garrett and others. Judgment for defendants, and plaintiffs appeal.

Affirmed.

Sarah T. Hughes, of Dallas, for appellants.

Clark, Harrell & Clark, of Greenville, and H. D. Garrett, of Emory, for appellees.

JOHNSON, Chief Justice.

H. D. Garrett was county judge of Rains county for two terms from January 1, 1919, to December 31, 1922. On April 9, 1920, H. D. Garrett, as such county judge, appointed S. T. Cates guardian of the estate of Elgin, Elmer, and Melvin Jarnagin, minors. Inventory and appraisement was returned showing the estate to consist of an undivided interest in certain real estate valued at $1,065, personal property, $300, total $1,365. S. T. Cates qualified by taking the oath and executing guardian's bond in the sum of $2,750, with A. J. Koon and O. H. Rhodes as sureties, approved same date. April 24, 1920, S. T. Cates filed application to sell the undivided interest of the wards in the real estate. May 12, 1920, H. D. Garrett, county judge, entered an order authorizing the sale. Sale was made, and the guardian's report approved, and the sale was confirmed May 21, 1920. The interest of Elmer and Melvin Jarnagin in the proceeds amounted to $833.34. H. D. Garrett did not, in the order authorizing the sale nor in the order approving and confirming the sale, require S. T. Cates, the guardian, to execute and file the special sale bond provided for in such sales of real estate, articles 4201 and 4216, R. S., and no such special sale bond was ever filed by the guardian. No order was ever entered by the county judge to require or cause the guardian to file an annual accounting in the estate. And no accountings were ever filed by the guardian. No order was ever entered requiring the guardian to give any bond in addition to the guardian's general bond which he gave at the time of qualifying. After entering his decree confirming the sale of the real estate, May 21, 1920, H. D. Garrett, county judge, entered no further orders in the estate. When Elgin Jarnagin, the oldest ward, became of age, it appears he was settled by the guardian. Elmer Jarnagin became twenty-one years of age November 4, 1926, and Melvin Jarnagin became twenty-one years of age October 18, 1931. On July 8, 1931, after previous order and notice, judgment was entered in the estate by J. H. Foster, then county judge of Rains county, removing S. T. Cates as guardian and holding him liable to Elmer and Melvin Jarnagin in the sum of their two-thirds interest in the personal property, and their interest in the proceeds of the sale of the real estate, and interest thereon, allowing a credit of $60 paid to Elmer Jarnagin on October 1, 1928. Thereafter Elmer and Melvin Jarnagin filed suit in the district court of Dallas county, where they and S. T. Cates resided. The suit was against S. T. Cates and A. J. Koon and O. H. Rhodes, sureties on his general guardianship bond, seeking to recover the sum for which the guardian had been held liable in the order of the county court of Rains county. Upon trial of the case before the court without a jury, judgment was entered in favor of plaintiffs against S. T. Cates for the full amount sued for, and in favor of each of the plaintiffs, respectively, in the sum of $100 each, and interest thereon, against the sureties on the general guardianship bond, this $100 each being the value of the interest of the wards in the personal property; and the court denied any recovery against the sureties as to the proceeds of the sale of the real estate, which judgment was in accord with holding of the Supreme Court. American Indemnity Co. v. Noble, 235 S. W. 867. The surety, O. H. Rhodes, paid the judgment rendered against him. Execution was issued on the judgment against S. T. Cates and the surety A. J. Koon and returned "nulla bona." It was further agreed that up to 1922 S. T. Cates was solvent and able to account to his wards for the proceeds of the sale of the land. If it may be inferred from the return on the execution that S. T. Cates and the surety A. J. Koon are now insolvent, the facts do not show or indicate when either of them became insolvent.

This suit was filed October 19, 1932, by Elmer and Melvin Jarnagin in the district court of Rains county against H. D. Garrett, former county judge of Rains county, and sureties on his official bond, seeking to recover damages in the amount received by S. T. Cates as guardian from the sale of plaintiffs' interest in the real estate and interest thereon from the date of sale, less the credit of $60 paid to Elmer Jarnagin; it being alleged plaintiffs sustained such loss and damages as the result of the alleged failure of H. D. Garrett in his official capacity to perform the statutory duties required of him in the premises as county judge of Rains county, and in the particulars hereafter stated. Defendants answered by general demurrer, special exceptions, general denial, and special pleas. The trial was had to the court without a jury upon an agreed statement of facts substantially and in effect as above recited. Judgment was entered for defendants, denying plaintiffs any recovery, and from which judgment plaintiffs have perfected their appeal.

It is the contention of appellants that they have suffered loss and damages in the respect and to the amount of money that they would have received from their guardian in settlement with him on account of the proceeds received by him from the sale of their interest in the land, had it not been for his insolvency, or which they would have received from the sureties on his special sales bond had he been required to have given the special sales bond provided by statute, Acts 1913, chapter 151, p. 321, R. S., articles 4201, 4216, to be given by guardians upon the sale of real estate; that such loss and damages were by them sustained as the result of the alleged failure of H. D. Garrett acting in his official capacity as county judge of Rains county to perform his statutory duties in reference...