National Surety Co. v. Landers

• Decision Date: 23 November 1921
• Docket Number: (No. 2448.)
• Citation: 235 S.W. 275
• Parties: NATIONAL SURETY CO. v. LANDERS.
• Court: Texas Court of Appeals

235 S.W. 275

NATIONAL SURETY CO. v. LANDERS.

(No. 2448.)

Court of Civil Appeals of Texas. Texarkana.

November 23, 1921.

Rehearing Denied December 1, 1921.

Appeal from District Court, Hopkins County; Geo. B. Hall, Judge.

Action by Mrs. Alice B. Landers against the National Surety Company. Judgment for plaintiff, and defendant appeals. Affirmed.

By an order of the county court of Hopkins county made July 3, 1912, A. P. Landers was appointed guardian of the person and estate of appellee, Alice B. Landers, his wife, who, the order recited, had been "adjudged to be a person of unsound mind." In March, 1914, said court made an order directing said A. P. Landers, as such guardian, to sell an undivided interest appellee owned in a tract of land. The court in the same order directed the guardian to make and file for approval a bond in "an amount equal to twice the value of said land and twice the amount for which said land is sold for." In compliance with the order the guardian sold the interest of appellee in the land for $6,050, and made and filed a bond in the sum of $12,100, which bond the court approved March 19, 1914. Appellant was the surety on the bond. January 28, 1916, the guardian filed a report showing that as such he had received said $6,050, and showing that he had expended of same sums aggregating $4,988.45, leaving $1,061.55 still in his hands. Said report was approved by said county court by an order made October 26, 1916. Afterwards, but at a time not shown by the record, by a suit she brought on said bond in the district court of Hopkins county, numbered 5901, appellee sought a recovery against the guardian and appellant, as his surety, of the $6,050 the guardian had received for her account as stated, on the ground that the guardian had wrongfully and fraudulently misused same for his own benefit. It does not appear from the record that A. P. Landers answered the suit, but it does appear that he died while it was pending. Appellant answered, setting up, among other things, that the report of the guardian hereinbefore referred to, showing expenditures by him on account of appellee aggregating, as aforesaid, $4,988.45, was duly approved by said county court, and for that reason she was not entitled to recover that much of the sum she sued for. The trial of the suit resulted in a judgment (rendered September 9, 1920) in appellee's favor against appellant for $1,061.55, which was duly paid to her by appellant. In the judgment was a recital with reference to the report of the guardian above referred to, as follows:

"The court refuses to pass upon the items set forth in said report, for the reason that the court is of the opinion that a bill of review should be first taken by the ward, Mrs. Alice B. Landers, in the probate court before this court would have jurisdiction to change, correct, or modify such report or account in any respect, and the amount of $1,061.55 for which judgment is rendered herein for the plaintiff, as aforesaid, is the amount and difference between the aggregate of said report and the total amount received by the said guardian."

September 13, 1920, appellee sought by a bill of review she then filed in said county court to have the order of that court approving the guardian's report so modified as to disapprove and expunge therefrom credits he claimed amounting to $3,850. Appellant, on grounds which need not be stated, contested the right of appellee to the relief she sought. At the hearing, had November 5, 1920, said county court granted the prayer of appellee as to items aggregating $2,950, and modified the order previously entered approving the guardian's report accordingly. At the same time said county court entered an order discharging appellee from control by the court and restoring her property to her. Appellant gave notice of an appeal to the district court from the order of said county court modifying the order approving the guardian's report, and a transcript of the proceedings in said county court was filed in the district court December 10, 1920. In the meantime, to wit, on November 12, 1920, appellee had commenced a suit (numbered 6110) in said district court to recover of appellant as the surety on said guardian's bond, said sum of $2,950, representing credits the guardian claimed in his said report, and which said county court, at the hearing of appellee's bill of review disapproved as aforesaid. In its answer appellant set up as reasons why a recovery should be denied appellee: (1) The judgment in the suit she first brought on the bond, in which she was awarded the sum of $1,061.55, which appellant paid, as hereinbefore stated; and (2) that appellee's right to maintain the suit was barred by the statute of limitations of two and four years. By the consent of the parties the two suits—that is, the one commenced by appellee in said county court to review and correct the order approving said guardian's report, pending in said district court on the appeal prosecuted as aforesaid, and the one last referred to above commenced by appellee in the latter court to recover the $2,950—were consolidated and tried in said district court as one suit. The trial resulted in the judgment rendered. January 29, 1921, from which this appeal is prosecuted, awarding appellee a recovery against appellant of said sum of $2,950, "being the amount," it was recited, "restored to her by the probate court of Hopkins county, Tex., in its judgment rendered on November 5, 1920, on her bill of review filed therein and appealed from by the National Surety Company which judgment is approved and is the amount sued for by the plaintiff, made up of the items shown therein." It does not appear from the record when, if ever, appellee was adjudged to be of unsound mind, but it does appear that she was admitted as a patient in the North Texas Insane Asylum June 18, 1908; that she was released from that institution on a furlough November 26, 1916, was discharged as improved April 18, 1917, and formally and finally discharged therefrom September 15, 1920.

Brooks, Worsham & Rollins, of Dallas, for appellant.

Wm. H. Atwell, of Dallas, for appellee.

WILLSON, C, J. (after stating the facts as above).

The order of the county court approving the guardian's report was made October 26, 1916. By the terms of...