Matthews v. Mauldin

• Decision Date: 11 January 1905
• Citation: 142 Ala. 434,38 So. 849
• Parties: MATTHEWS ET AL. v. MAULDIN ET AL.
• Court: Alabama Supreme Court

38 So. 849

142 Ala. 434

MATTHEWS ET AL. v. MAULDIN ET AL.

Supreme Court of Alabama

January 11, 1905

Appeal from Chancery Court, Dale County; W. L. Parks, Chancellor.

Bill by Whitford Mauldin and another against W. G. Matthews and others. Decree for complainants. Defendants appeal. Affirmed.

The bill alleged that the complainants were minors, and that Matthews on the 10th day of May, 1893, had been appointed by the probate courtof Dale county their guardian, and that he had given bond in a certain amount, with the respondents Blackmon, Sanders, Harper, Mosely, Garner, and Sandsbury as sureties; that on the 2d of June thereafter Blackmon filed a petition in said probate court against Matthews, praying that Matthews give a new bond, and that the said Matthews on the 3d day of July next thereafter filed a bond, which was approved by the probate court, said bond being executed by D G. May, W. R. Painter, and J. N. Sandsbury as sureties Matthews himself not signing the same; that there was no order of the probate court discharging said first bondsmen that thereafter the probate court of Dale county ordered Matthews to give a new bond, and to make a final settlement; and upon the said Matthews' failure to come in court the court proceeded to state the account, and rendered a decree for a certain amount in favor of the complainants, and also reciting in said decree that the said Matthews was removed as such guardian for having failed to make bond. Painter, surety on the second bond, demurred to said bill on the ground that the bill failed to show that the principal, Matthews, signed said bond; that said bill was multifarious; and that there was an improper joinder of parties respondent. He also moved to dismiss said bill for want of equity. The court overruled said demurrers and motion. The said Blackmon, Sanders, and Harper demurred to said bill on the grounds that said bill was multifarious, that there was improper joinder of party respondents, that the bill showed that they had been discharged by the taking and making of a new bond, and that said cause against them was barred by the statute of limitations. They also moved to dismiss said bill for want of equity. The court also overruled these demurrers and motion. The respondents above named then filed answers setting up substantially the same points as raised by demurrer, and that the probate court had discharged the said Matthews, their principal, from further liability, and that the chancery court had no jurisdiction to bring the said guardian to a settlement.

Worthy & Gardner, J. E. Acker, and Sollie & Kirkland, for appellants.

Foster, Samford & Carroll, for appellees.

ANDERSON J.

The complainants, minors, filed their bill by next friend against their guardian and two sets of sureties on his official bonds for the purpose of bringing the said guardian to a settlement. The jurisdiction of the probate court and the court of chancery are concurrent in matters of guardianship and the ward has an unqualified right of electing the forum in which he will seek a settlement. Hailey v. Boyd, 64 Ala. 399. And a final settlement made in the probate court by the guardian before his resignation or removal and during the minority of his ward is void for want of jurisdiction of the probate court. Glass v. Glass, 80 Ala. 241; Glass v. Glass, 76 Ala. 368; Lewis v. Allred, 57 Ala. 628; Lee v. Lee, 67 Ala. 406. A bill by a ward against the guardian and several sets of sureties on his official bonds is not liable to objection on ground of misjoinder, multifariousness, and want of equity, and the demurrers were...