Johnson v. Henshaw

• Court: Oklahoma Supreme Court
• Writing for the Court: BAILEY, J.
• Citation: Johnson v. Henshaw, 193 P. 998, 80 Okla. 58, 1920 OK 383 (Okla. 1920)
• Decision Date: 14 December 1920
• Docket Number: 9890.
• Parties: JOHNSON ET AL. v. HENSHAW.

193 P. 998

80 Okla. 58, 1920 OK 383

JOHNSON ET AL. v. HENSHAW.

No. 9890.

Supreme Court of Oklahoma

December 14, 1920

Syllabus by the Court.

Section 5035, Rev. Laws 1910, requiring a motion for a new trial to be filed within three days after verdict, is mandatory; and in the absence of a showing that the party filing it has been unavoidably prevented from filing it within the time specified in said statute, this court cannot consider it, or review the errors occurring at the trial.

Where a guardian dies without an accounting and without settlement of his affairs as guardian having been made in the county court his former ward may maintain an action in the superior or district court against his personal representatives and the sureties on his bond as guardian, for such an accounting and settlement.

Appeal from District Court, McIntosh County; R. W. Higgins, Judge.

Action by Willie Henshaw, a minor, by Pleas Henshaw, her legal guardian, against A. O. Johnson and another. Judgment for plaintiff, and defendants appeal. Affirmed.

Claude A. Niles, of Checotah, for plaintiffs in error.

J. B Lucas and Britton H. Tabor, both of Checotah, for defendant in error.

BAILEY J.

This action was begun in the district court of McIntosh county by defendant in error to recover of the plaintiffs in error the sum of $3,100.50, as the bondsmen of Felen B. McIntosh deceased. It being alleged that the said guardian had misappropriated said sum, the proceeds of certain lands sold by said guardian and belonging to Willie Henshaw, née McIntosh, defendant in error. The petition further alleges that after dissipating and misappropriating said fund, said guardian died without making any report or accounting to the county court. Plaintiffs in error filed their answer, admitting the execution of said bond, but denying that said guardian had misappropriated any moneys or funds, and denying the jurisdiction of the district court to try the cause or render judgment against the defendants therefor.

Stipulation was filed, waiving the right to trial by jury, and agreeing that the cause be heard by the court. The cause was tried to the court on the 13th day of March, 1917, and at the conclusion of the hearing of evidence the court announced that it would reserve decision and take the matter under advisement. Thereafter, on the 31st day of July, 1917, the court announced that judgment would be entered for plaintiffs, defendants in error here, in the sum of $650, and judgment was entered accordingly. The record further discloses judgment in due and regular form, rendered on the 19th day of October in favor of plaintiff, defendant in error here, in the sum of $850. On the 23d day of October, 1917, plaintiff in error filed a motion for a new trial, which motion was in due time heard and overruled, and the cause appealed to this court.

It will be noted that the final judgment was rendered in this cause on the 19th day of October, and that the motion for a new trial was filed on the 23d day of October, 1917.

It is first contended that the trial court erred in setting aside the judgment rendered on July 31, 1917. In many cases from this court, the rule as announced in Joiner v. Goldsmith, 25 Okl. 840, 107 P. 733, has been quoted and approved. There it was said:

"On March 20, 1908, or four days later, defendant filed motion for a new trial, which was overruled. Defendant brings the case here, and assigns for error that the court erred in overruling his motion for a new trial. But we

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