Madison v. Buhl, 5750

• Decision Date: 02 February 1932
• Docket Number: 5750
• Citation: 8 P.2d 271,51 Idaho 564
• Parties: JOANNA MADISON, Appellant, v. LESLIE H. BUHL, ISLA BUHL HALL and DOLLIE CLAIRE SMITH, Respondents
• Court: Idaho Supreme Court

8 P.2d 271

51 Idaho 564

JOANNA MADISON, Appellant, v. LESLIE H. BUHL, ISLA BUHL HALL and DOLLIE CLAIRE SMITH, Respondents

No. 5750

Supreme Court of Idaho

February 2, 1932

GUARDIAN AND WARD-LIABILITIES ON GUARDIANSHIP BOND-ENFORCEMENT AGAINST HEIRS OF SURETY.

1. Where guardian has died without settlement of accounts in ward's estate, surety may be sued directly for accounting and judgment.

2. Former ward held entitled to maintain equitable action for accounting against heirs, devisees and donees of deceased surety of deceased guardian, and to have property acquired by defendants from surety without consideration, surcharged with guardian's debt (C. S., secs. 7642, 7714).

3. All property of estate constitutes trust fund for benefit of creditors (C. S., secs. 7642, 7714).

4. Where estate of deceased surety had been closed and executor discharged, equity should assume jurisdiction of action by former ward against heirs, devisees, and donees of deceased guardian's surety for accounting, and should settle all phases of litigation, notwithstanding failure to obtain judgment against principal.

5. Claim asserted by former ward against heirs, devisees, and grantees of surety of deceased guardian for accounting held not claim "arising upon contract," and therefore failure to file claim against surety's estate did not prevent recovery thereon in equity (C. S., secs. 429-431 433, 448, 7581, 7582, 7586, 7588, 7579, 7849).

APPEAL from the District Court of the Seventh Judicial District, for Washington County. Hon. A. O. Sutton, Judge.

Action in equity for an accounting and for the impressment of an equitable lien upon the estate of the deceased surety of a deceased guardian. From an order sustaining a demurrer to the complaint, plaintiff appeals. Reversed.

Reversed and remanded. Costs awarded to appellant.

Thos E. Buckner and Donald Anderson, for Appellant.

It is not necessary that a claim for a fund wrongfully misappropriated by a guardian be presented to the administrator of the surety of such deceased guardian before an action for recovery thereon can be maintained. (Pruett v. Caddigan, 42 Nev. 329, 176 P. 787; Nathan v. Freeman 70 Mont. 259, 225 P. 1015.)

There being but one form of civil action in this state, a plaintiff may recover if his complaint states any cause of action entitling him to relief at law or in equity. In equitable cases the cause of action set out in the complaint does not constitute a "claim" which must be presented to the administrator before an action can be maintained under C. S., sec. 7588. (Toulouse v. Burkett, 2 Idaho (Hasb.) 184, 10 P. 26; Casady v. Scott, 40 Idaho 137, 237 P. 415.)

There was no contractual relation existing between the ward and her guardian's sureties, but the relation was one created and governed by law and it was therefore unnecessary that a claim for a fund wrongfully misappropriated by her guardian be presented to the administrator of the surety of such guardian before an action for recovery thereon can be maintained. (Asher v. Stull, 61 Okla. 320, 161 P. 808.)

George Donart, for Respondents.

A premature judgment or order is not void, but is merely irregular and voidable and is effective until reversed or set aside. (34 C. J. 180; 23 C. J. 1088; 1 Bancroft's Probate Practice, sec. 270, p. 513; Rice v. Tilton, 14 Wyo. 101, 82 P. 577; Dallam County Bank v. Burnside, 31 N.M. 537, 249 P. 109; Merchant's Collection Co. v. Sherburne, 158 Wash. 426, 290 P. 991.)

An attack upon a judgment or order is collateral if the action or proceeding has an independent purpose and contemplates some relief or result other than the mere setting aside of the judgment or order although the setting aside of such judgment or order may be necessary to secure such independent purpose. (Simonton v. Simonton, 33 Idaho 255, 193 P. 386); C. S., sec. 7581; Blake v. Lemp, 32 Idaho 158, 179 P. 737; Rice v. Rigley, 7 Idaho 115, 61 P. 290.)

LEEPER, J. Lee, C. J., and Budge, Givens and Varian, JJ., concur.

OPINION

LEEPER, J.

The facts are these: The plaintiff has filed an amended complaint in which she alleges the following: That on January 23, 1915, one Joseph Madison was duly appointed guardian of her estate, she being at the time a minor, and continued as such until October 16, 1926, on which date he died; that a guardian's bond was executed in regular form in the principal amount of $ 2,500 upon which O. E. Sutton and Nelson Buhl were sureties, which bond was properly approved and filed by the probate court of Washingtion county where the estate was pending, and that ever since its execution the bond has been and now is in full force and effect; that as guardian the said Joseph Madison received the sum of $ 2,500 in cash belonging to the plaintiff shortly after his appointment, which he diverted to his own use, for which he failed to account and which he never invested for or paid over to the ward; that after the death of the guardian his estate was admitted to probate and an administrator appointed, to whom a claim was presented on behalf of the plaintiff, which was duly allowed by him in the sum of $ 4,557 (this representing the principal and interest due upon plaintiff's claim) and upon which there was thereafter paid out of the estate of the deceased guardian in several installments the sum of $ 506.77, the last installment having been paid on the twenty-third day of April, 1930; that the estate of Joseph Madison is insolvent and unable to pay the balance of the amount due the plaintiff; that Nelson Buhl, one of the sureties on the bond, died on April 7, 1926 (six months and nine days prior to the death of the guardian) leaving a will and an estate which was admitted to probate in Washington county, and an executor appointed; that the petition for this probate was filed on April 15, 1926, and an order entered fixing time for hearing for May 1, 1926, but the order admitting the will to probate was entered on April 30, 1926, rather than at the time set; that the executor of the estate of Nelson Buhl first published notice to creditors on May 15, 1926, requiring that claims be presented within four months from that time, but the estate was worth more than $ 5,000 and therefore the notice should have required claims to be presented within ten months thereafter; that Joseph Madison, as guardian of this plaintiff, did not present a claim on her behalf against the estate of Nelson Buhl within the four months' period, or at all, and that he was incapacitated from so doing; that Leslie H. Buhl, Isla Buhl Hall and Dollie Claire Smith are the sole and only heirs and devisees of Nelson Buhl, deceased; that the said heirs are the sole grantees named in a certain warranty deed executed by Nelson Buhl in his lifetime, on the fourteenth day of July, 1922, whereby he conveyed to them all of his lands, worth in excess of $ 15,000; that this deed was delivered to a third party to be held by him during the lifetime of Nelson Buhl and upon his death to be delivered to the grantees named therein; that during the lifetime of Nelson Buhl he remained in the possession, use and occupancy of the premises, and he appeared as the record owner thereof; that the said lands were not inventoried as a part of the estate of Nelson Buhl, deceased, and were never probated as a part of his estate; that the transfer thereof was without consideration and in fraud of creditors and that the grantees have recorded the deeds and now claim to be the owners thereof; that all other property belonging to the estate of Nelson Buhl has been disposed of and the estate was closed and distributed on the thirtieth day of August, 1928; that this plaintiff reached majority on the thirtieth day of September, 1928, and this action was instituted within three years thereafter.

The plaintiff declares on four causes of action and certain phases of the facts are set out in each. The relief prayed for is that an equitable lien be imposed upon the lands acquired by the defendants in amount sufficient to pay the claim of plaintiff arising out of the default of her guardian, and that defendants be required to pay the amount due plaintiff before acquiring title to the lands.

To this complaint general demurrers were lodged and sustained, and upon plaintiff's refusal to further plead, the action was dismissed. From the judgment of dismissal this appeal is taken. Therefore, the sole question to be decided here is whether or not the complaint states a cause of action.

Stripped down to its fundamental legal proposition, in this complaint the plaintiff, a ward who has come of age, invokes equity to effect a settlement of the account of her deceased guardian and to recover the amount found due out of the property acquired by these defendants as heirs, devisees and grantees of a deceased surety upon the bond of the guardian.

Necessarily, the plaintiff can have no right against these defendants other than she would have had against the surety were he alive, and it is essential to know exactly what these rights would be.

Had Nelson Buhl, the surety, been alive at the time that this action was instituted, it seems clear that an action in equity would lie against him for an accounting and judgment in the amount found due.

While the guardian remains alive, ordinarily his accounts must be settled by the probate court, before action can be had against the surety (28 C. J. 1304, sec. 514), but this rule does not prevail if he has died without making an accounting. Under such circumstances an action may be instituted directly against the personal representatives of the deceased guardian and the sureties for an accounting and judgment in the same action.

"Where an administrator or guardian dies or absconds or is beyond the jurisdiction of the court,...