McDonald v. People to Use of Francis

• Decision Date: 05 May 1902
• Citation: 29 Colo. 503,69 P. 703
• Parties: McDONALD et al. v. PEOPLE, to Use of FRANCIS et al.
• Court: Colorado Supreme Court

69 P. 703

29 Colo. 503

McDONALD et al. v. PEOPLE, to Use of FRANCIS et al.

Supreme Court of Colorado

May 5, 1902

Error to Pueblo county court.

Action on a guardian's bond by the people, for the use of Bessie Francis and another, against W. H. McDonald and another. From a judgment for plaintiff, defendants bring error. Affirmed.

Action by defendant in error as plaintiff, for the use of his wards against plaintiffs in error as defendants, sureties on the bond of the former guardian of the minor wards. From a judgment against them, the sureties bring the case here for review on error.

Steele J., dissenting.

M. J. Galligan, for plaintiffs in error.

L. A Cram and Arrington & McAliney, for defendant in error.

PER CURIAM.

In the original opinion filed, we affirmed the judgment of the trial court. A rehearing was granted. Upon a reconsideration of the case, we are satisfied the judgment was correct. We shall not, however, discuss all of the questions raised by defendants, and determined in the former opinion, for the reason that, except as to those now determined, they are obviously without merit.

Counsel for defendants contends the complaint is insufficient because it does not allege an accounting by the former guardian previous to the bringing of this action. Ordinarily, it is true that, before an action can be maintained against the sureties on a guardian's bond, it must be alleged that an accounting has been made by the guardian, and an order of court rendered in relation to the trust fund which has not been complied with by the guardian. This rule obtains for the reason that the sureties on a bond of this character are not liable to the beneficiaries until a breach of its conditions. Where, however, as in the case at bar facts are averred from which it appears there has been a breach of the conditions of the bond, on the part of a guardian, of a character which makes it necessary to resort to the bond in order to protect the interests of the wards, the rule is satisfied. Gebhard v. Smith, 1 Colo.App. 342, 29 P. 303. In the complaint it is alleged that subsequent to the appointment of the former guardian she was adjudged insane, and a conservator appointed to take charge of her estate; that prior to this action she had received and converted to her own use moneys belonging to the minors; that shortly after the appointment of the present guardian he demanded of the conservator the possession of any funds or personal property, belonging to the minors, that had been received by the former guardian, which request had not been complied with; that her estate has been finally settled, and the conservator has paid the present guardian only a part of the moneys alleged to have been wrongfully converted by the former guardian, which is all that has ever been paid on this account. One of the conditions of the bond is that the guardian 'shall faithfully discharge the office and trust of such guardian according to law.' The conversion of moneys to her own use belonging to her wards was certainly a failure to discharge the trust which she undertook according to law. It being further charged that her estate has been finally settled, and that the conservator of her estate had failed to pay the present guardian a part of the sum which she had wrongfully used, and there is nothing further to be had from the estate, the only recourse is to call upon the sureties to answer for the default of their principal. For answer, the defendants denied the allegations of the complaint. They also pleaded several special defenses, to which plaintiff interposed demurrers, which were sustained. Plaintiff also moved to strike a portion of the defense pleaded in paragraph 5 of the answer, which was sustained. This paragraph as it then stood, and also paragraph 3, which was not attacked, denied that the former guardian had wrongfully converted, in whole or in part, the money sued for, and further pleaded that she had expended this money for the support and maintenance of her wards, who were her children; which sum, together with the compensation to which she would be entitled as guardian, amounted to $2,000, for which the defendants asked a credit to offset any and all claims which the minors might have against them as sureties on their former guardian's bond. No further plea was filed to this answer, and defendants moved for judgment on the pleadings for the reason, as they claim, that under the uncontroverted facts in their answer they were entitled to judgment. This motion was overruled. Plaintiff then offered evidence in support of the averments of the complaint. Defendants offered none.

The only further question we shall consider on the merits, as originally presented, is the one which relates to the alleged error of the trial court in denying the motion for a judgment on the pleadings. It is said, in the argument for defendants that the demurrers to the several defenses were sustained upon the theory that no credit for necessaries furnished the minors could be...