Less v. Ghio

• Decision Date: 01 June 1899
• Citation: 51 S.W. 502
• Parties: LESS v. GHIO.
• Court: Texas Supreme Court

Page 502

51 S.W. 502

LESS v. GHIO.

Supreme Court of Texas.

June 1, 1899.

Error to court of civil appeals of Third supreme judicial district.

Motion by A. L. Ghio to require Mrs. Etta Less, guardian of the estate of Isaac Kosminsky, to file a new bond. An order of the district court sustaining the motion having been affirmed by the court of civil appeals (49 S. W. 635), Mrs. Etta Less brings error. Reversed.

P. A. Turner, for plaintiff in error. Todd & Glass, for defendant in error.

BROWN, J.

The facts found by the court of civil appeals are as follows: "On January 17, 1898, appellant was appointed guardian of the estate of Isaac Kosminsky, minor, and her bond was fixed at $22,000 by the county court of Bowie county, Tex. On the same day she took the oath and made the bond, and it was approved by the county judge of said county. This bond was subscribed by appellant as principal, and by the Fidelity & Deposit Company of Maryland and A. G. Robb as sureties. On January 27, 1898, A. L. Ghio, appellee, who held a claim against the estate of said minor for about $2,800, filed a motion in said county court to require said guardian to make a new bond, because one of the sureties on the old bond, to wit, `The Fidelity & Deposit Company of Maryland, is a foreign corporation, not organized or created under the laws of Texas, and such company is not a competent surety on said bond, and the same is illegal and insufficient.' On February 4, 1898, this motion was heard and overruled by the county court, and A. L. Ghio perfected his appeal therefrom to the district court of said county. On April 9, 1898, this motion was heard by the district court, and was sustained, and appellant was required to make a new and a good and sufficient bond, and she has perfected her appeal therefrom to this court. It is agreed that the Fidelity & Deposit Company of Maryland is a corporation created by the laws of the state of Maryland, and that it has complied with all the laws of this state authorizing it to do business herein, and that the only objection to the bond is that the Fidelity & Deposit Company of Maryland cannot execute the same, for the reason that it is not organized or created under the laws of this state."

The defendant in error has filed a motion in this case to dismiss the writ of error because his claim against the estate of the minor has been paid since the action of the court below, and he claims that the controversy between himself and the plaintiff in error has terminated. Ghio's claim against the estate was never in controversy in this suit. The subject of the litigation was the bond of the guardian, which the court set aside, and ordered her to give a new one. If this judgment stands, she must either give a new bond or cease to be guardian. The subject of this litigation has not been settled, and the motion to dismiss the writ of error is therefore overruled.

The 25th legislature of the state of Texas amended article 2601 of the Revised Civil Statutes upon the subject of guardians' bonds and sureties thereon. As amended, that article reads as follows: "Any bond required by the provisions of this chapter to be given by a guardian shall be subscribed by such guardian and by at least two good and sufficient sureties, to be approved by the county judge of the county in which the guardianship is pending; provided, that such bond may be made by corporations organized or created under the laws of this state for the purpose of issuing surety, guaranty, or indemnity bonds, guarantying fidelity of executors, administrators and guardians, and may be accepted by the county judge." This act was passed on the 23d day of March, 1897. Laws 25th Leg. p. 52. Prior to the passage of this act, there was no authority under the laws of this state for such corporation to become surety on the bond of a guardian. At the same session of the legislature, on the 10th day of June of the same year, another act was passed, being Gen. Laws 25th Leg. p. 244, c. 165, which authorized certain corporations named therein to engage in business in this state, and to become sureties upon various classes of bonds...