Md. Cas. Co v. Tressell

• Decision Date: 08 February 1938
• Docket Number: No. 8637.,8637.
• Court: West Virginia Supreme Court
• Parties: MARYLAND CASUALTY CO. v. TRESSELL et al.

195 S.E. 268

MARYLAND CASUALTY CO.

v.TRESSELL et al.

No. 8637.

Supreme Court of Appeals of West Virginia.

Feb. 8, 1938.

Syllabus by the Court.

1. In the absence of a clear showing of necessity for apportionment of liability among sureties on different bonds of a committee for an insane person, a surety, sued at law on the original bond of the committee, may not enjoin prosecution of the action pending ascertainment of liability of another surety on a subsequent bond given by the committee for the protection of funds arising from the sale of real estate of the ward.

2. A surety's liability on the original bond of a committee for an insane person is not inclusive of funds which subsequently came into the custody of the committee by reason of sale, under decree of court, of real estate belonging to his ward. A subsequent bond, required of the committee by the court as a condition precedent to making sale of the real estate, is alone liable for funds arising from such sale.

Appeal from Circuit Court, Greenbrier County.

Suit by the Maryland Casualty Company against A. M. Tressell, administrator, and others, to enjoin actions at law against the plaintiff by reason of its suretyship until final determination of its suit, and to obtain a statement of the accounts of the committee for which it was surety. From an adverse decree, plaintiff appeals.

Decree modified and, as so modified, affirmed.

D. H. Hill Arnold, of Elkins, and Price & McWhorter, of Lewisburg, for appellant.

Davis & Painter, of Charleston, and S. M. Austin and H. L. Van Sickler, both of Lewisburg, for appellees.

MAXWELL, President.

By this appeal, there is brought in question a decree of the circuit court of Greenbrier county dismissing on their motion the two principal defendants in the case.

Emma Josephine Bowley was adjudged insane in April, 1924, and Samuel A. Dickson was appointed committee. He gave bond April 19, 1924, in the prescribed penalty of $5,000.00 with Maryland Casualty Company as surety.

In December of the same year, the committee sought and obtained in the circuit court of Custer County, Nebraska, a decree authorizing him to make sale of certain real estate belonging to his ward and situated in that county. The court required bond in the penalty of $12,-000.00. He executed such bond with the American Surety Company of New York as surety.

The committee, Samuel A. Dickson, died in November, 1934. Emma Josephine Bow-ley died in 1935. In December, 1935, A. M. Tressell, administrator of the personal estate of Emma Josephine Bowley, deceased, instituted in the circuit court of Greenbrier County an action at law against Mary Ida Dickson, executrix of the last will of Samuel A. Dickson, deceased, and Maryland Casualty Company to recover the full amount of the committee's bond which had been executed by him and his surety in Greenbrier County.

Soon after the institution of the action at law, the Maryland Casualty Company instituted in the same court this chancery cause. In addition to the matters hereinabove set forth, it is alleged in the bill that personal property of the value of about $3,000.00 came into the custody of the committee at the time of his qualification as such, and that the same was all properly accounted for by the committee; that from the sale of the Nebraska real estate, there came to the committee the sum of $10,000.- 00; that a majority of the heirs of Emma Josephine Bowley, deceased, have approved by written statement the application of funds by the committee; that the estate of Samuel A. Dickson, deceased, is insolvent; that at the time it became surety on the committee's original bond, the plaintiff entered into an agreement with the Bank of White Sulphur Springs, whereunder, in consideration of its receiving the deposit of the funds by Dickson, committee, the bank agreed not to permit the withdrawal of any of said funds by the committee except on checks counter-signed by a representative of the surety, and that the bank, in violation of that agreement, permitted the committee to withdraw and disburse funds without the knowledge of the surety; that the sum of $6,962.82, shown by a report of the commissioner of accounts of Greenbrier County to have been in the hands of the committee in 1926, was derived entirely from the sale of the Nebraska real estate.

The prayer of the bill is that all actions at law against the plaintiff by reason of its suretyship be stayed until the final determination of this cause; that the accounts of Dickson, committee, be taken, stated and settled; that a separate account may be made of the personalty which came into the committee's hands, and his disbursements therefrom; that a separate account may be made of the proceeds derived from the sale of the Nebraska real estate, and the disbursements made from said proceeds; that if any liability be found against the plaintiff, there be ascertainment and report of disbursements which have been permitted by the Bank of White Sulphur Springs without the checks and vouchers therefor being countersigned by a representative of the plaintiff; that upon the incoming of the...