Mumford v. Rood

Decision Date07 August 1915
Docket Number3659.
Citation153 N.W. 921,36 S.D. 80
PartiesMUMFORD et al. v. ROOD.
CourtSouth Dakota Supreme Court

Appeal from Circuit Court, Meade County; Levi McGee, Acting Judge.

In the matter of the guardianship of the persons of Edgar Mumford and Mabel Mumford. From a judgment, affirming an order of the county court approving, allowing, and settling the final account of Frank M. Rood, guardian, and directing a distribution by him of the property in his hands, Edgar Mumford and Mabel Mumford appeal. Reversed.

Null & Royhl, of Huron, for appellants.

Martin & Mason, of Deadwood, and Philip & Waggoner, of Ft. Pierre for respondent.

WHITING J.

This matter is before us upon appeal from a judgment of the circuit court affirming an order of the county court, which said order approved, allowed, and settled the final account of a guardian and directed the distribution by the said guardian of the property reported by him as in his hands and belonging to the estate of his wards.

Respondent contends that there is nothing before this court for its consideration because the only assignment of error in appellants' brief is one assigning as error the overruling of appellants' motion for new trial. This court had hoped that, after the publication of the opinion in Hepner v. Wheatley, 33 S.D. 34, 144 N.W. 924, the proper method of setting forth assignments of error in an appellant's brief would be so clearly established as to prevent any further questions arising in relation thereto but it would seem that, regardless of the clearness and directness of the language used in said opinion appellants' counsel have misunderstood the same or else have not had such opinion called to their attention. The jurisdiction of this court rests upon the assignments of error. It is therefore necessary that an appellant's brief point out clearly the assignments of error relied upon, and correct practice demands that such assignments be set out as "Assignments of Error"; but it is not absolutely essential that an appellant's brief contain the "Specifications of Error." While specifications of error may be absolutely essential in order to preserve a proper record for an appeal, yet their value rests simply in the fact that they form a basis upon which proper assignments of error may rest. Appellants, in their brief, have set forth the specifications of error contained in the settled record; following such specifications is the certificate of the trial judge settling the settled record; next, under the heading "Additional Assignment of Error," is found an assignment assigning as error the denial of the motion for new trial. The use of the word "additional" in the said heading amounts to a declaration that, somewhere in the preceding part of the brief, are to be found other assignments of error; and we think there could have been no doubt in the mind of respondent, as there certainly is not in the minds of the judges of this court, but that appellants' counsel were treating, as assignments of error, the foregoing specifications of error. While appellants' counsel have failed to prepare the brief in the manner pointed out by this court in its rules and in the opinion in Hepner v. Wheatley, supra, yet we do not feel that we would be justified in rejecting such brief, where the failure could not possibly be misleading to respondent's counsel, although, upon motion timely made, we certainly would have required the appellants to clearly set forth in their brief those matters which they desired to assign as error in this court.

The questions presented upon this appeal all relate to certain certificates of deposit reported by the guardian as part of the assets of the estate, and which, upon the hearing of the guardian's final report, the county court directed should be set over to the wards. It appears that: Some time prior to the year 1901, appellants' father died leaving an estate consisting of real and personal property in this state, a material part of which estate was in the shape of certificates of deposit in a bank known as the Meade County Bank. Respondent was appointed administrator of said estate, and, as such administrator, he renewed the certificates of deposit. He afterwards, on May 28, 1901, duly qualified as the guardian of the minor heirs of the deceased, and among the property which came into his hands as such guardian were these certificates of deposit which he had held as administrator. The deposits, evidenced by such certificates, were some for four and the remainder for six months. It was the custom of the said guardian, as shown by annual reports presented to the county court, to renew the deposits upon the maturity of the certificates; the result being that the original amount, together with some additions made thereto from time to time, was kept upon deposit in said bank and represented by certificates of deposit up to December 26, 1911, when said bank failed.

The guardian, from year to year during the period of his trusteeship, filed reports, which reports were accepted and approved. Each of such reports set forth, as a part of the assets in the hands of the guardian, the certificates of deposit then held by such trustee. A report for the year 1911 was presented and approved soon after the failure of the said Meade County Bank. Another report was presented and approved in January, 1913, which last report showed cash dividends received from the certificates of deposit held by the guardian. After such January, 1913, report, the wards, who had then arrived at majority, demanded a final account and a distribution of property belonging to them. The guardian presented such an account which showed these certificates of deposit held by him. He asked to be allowed to turn these certificates over to the wards. The wards objected to receiving same. The county court, and upon appeal the circuit court, granted the guardian's request; and it is from the judgment of the circuit court, allowing the guardian to turn over such certificates, and thus releasing him from personal liability for depositing the wards' funds in the bank, that this appeal is taken.

The circuit court found that there was no evidence showing that the guardian did not procure of the county court an order directing him to invest the trust funds as he did. The respondent contends that appellants are concluded by this finding-that without evidence to the contrary it will be presumed that the guardian procured an order of the court if such an order was necessary. We cannot agree with such contention. A guardian may, under section 407, Prob. Code procure from the county court an order authorizing and directing the investments that he shall make. If he procures such an order and complies therewith, he is fully protected thereby against any loss resulting from such investments where he is otherwise free from negligence. A guardian is not in duty bound to procure such an order where, as in this state, there is no statute requiring same, and, if he "act honestly and faithfully and exercise a sound discretion such as men of ordinary prudence and intelligence use in their own affairs," he is not holden though loss occurs. 21 Cyc. 87-89; Pomeroy's Equity Jurisprudence, § 1070. Upon the other hand, if his investments are not such as he should have made, he can only protect himself from liability by showing that he was acting in accordance with an order of the court. Therefore the only time when proof of an order becomes essential is when it is offered by way of necessary defense, and, when it thus...

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