Oldham v. Trimble

• Citation: 15 Mo. 225
• Parties: OLDHAM & BROADDUS v. ELIZABETH TRIMBLE.
• Decision Date: 31 October 1851
• Court: Missouri Supreme Court

15 Mo. 225

OLDHAM & BROADDUS

v.ELIZABETH TRIMBLE.

Supreme Court of Missouri.

October Term, 1851.

APPEAL FROM MONROE CIRCUIT COURT.

GLOVER & CAMPBELL, for Appellants. 1. The Chancellor had no jurisdiction of the case, the remedy at law being perfect and of daily use. 2. The court had no power to disturb the settlements of the County Court. 3. If the court had jurisdiction of the subject matter as to Oldham, there was certainly no propriety in rendering any decree against Broaddus who was not a trustee, and whose undertaking was merely collateral to that of the trustee, Oldham. 4. The testimony shows that the ward was, on a fair account taken, indebted to her guardian. The agreement not to charge her, set up in the bill, was not proved. If it had been, it ought not to have been allowed to enhance the liability of Broaddus without showing his assent.

HOWELL, for Appellees. 1. Alexander R. Oldham, guardian of Elizabeth Reid, now Mrs. Trimble, having obtained said credit ( i. e. credit for board, clothing, & c., against said Elizabeth), although improperly and fraudulently, the term of the court at which said credit was obtained having passed, said County Court had no jurisdiction to set aside its own judgments and revise its proceedings, and the only remedy of plaintiffs below was, in a court of chancery, which has jurisdiction to afford relief. Miller v. Woodward, 8 Mo. R. 169; Clark v. Henry, 9 Mo. R. 339. 2. The court of chancery, having jurisdiction over Oldham, the guardian, and the subject matter of the suit being properly cognizable in said court, and the security being a party, will go on and give full relief, and not, after having given partial relief, turn the parties over to a court of law for the residue. 3. Objection cannot be made by defendants to the jurisdiction of the court after answer, and at the hearing, for the first time, 10 Mo. R. 652, Martin v. Greene. 4. If defendants below desired to avail themselves of any supposed benefit, growing out of the allowance of the credit by the County Court, they should have pleaded that matter, or set it up in their answers and relied on it. 5. The defendants, having appealed from the decree, and thereby prevented complainants from appealing, this court should, if, in its opinion, complainants below were entitled to a larger decree than they obtained, enlarge the decree of the court below, which appellees insist should have been for the full amount of the credit taken, and interest on it.

SCOTT, J.

This was a bill in chancery filed in February, 1848, by John A. Trimble and Elizabeth his wife, against the appellants. The bill substantially charges, that the said Elizabeth, whose maiden name was Reid, in the year 1839 or 1840, was a minor, residing with her friends in Kentucky; that she possessed about $200 which was in the hands of her guardian. Unwilling to diminish her small patrimony, her friends charged her little or nothing for board; that about this time A. P. Oldham, a relation of hers and a resident of Monroe county in this State, came to Kentucky and proposed to her to go home with him and live in his family, as he desired her company for his wife; that he would take her to Missouri and she would be treated as one of his own children, free of any expense, so long as she pleased to remain with him, and that he would gratuitously act as her curator; that she accepted his proposition and accompanied Oldham to Missouri, in whose family she lived until some time in September, 1844, performing such duties as were appropriate for one in her situation; that in June, 1845, the said John A. Trimble and the said Elizabeth were married; that in September, 1840, by appointment of the County Court of Monroe county, the said Oldham became curator and guardian of the said Elizabeth, and pursuant to law executed a bond with Jesse Oldham and Hudson Broaddus as his securities; that in the year 1840 or '41, the said Oldham received as curator, from her former guardian in Kentucky, about the sum of $201 64; that in 1842 he made a settlement of his accounts as curator and charged himself with the sum of $185, which was alleged to have been received from her guardian in Kentucky; that in February, 1844, another settlement was made, in which he, against all his promises and assurances, fraudulently and without any vouchers charged the said Elizabeth with the sum of $185 for “board and clothing for four years, and bringing her from Kentucky, and for horse, saddle, and bridle, and for noney paid in Kentucky, for tuition, board, &c” that a part of this charge is false and the rest unsupported in right or justice; that Jesse Oldham, one of the securities in the bond of the said Wm. P. Oldham, as curator, has departed this life and his estate upon an administration has proved insolvent. It is further charged that the said settlements were not made at the times required by law, and that they are fraudulent.

The answer of Oldham admits that he brought the complainant, Elizabeth, from Kentucky, in the early part of the year 1839, and by her election became her guardian and curator and executed the bond as stated in the bill; that he was induced to become her curator, because it was represented here, that her guardian in Kentucky was in failing circumstances; that to obtain the money to which the said Elizabeth was entitled in Kentucky, he went thither at a time little suited to his convenience and found her guardian charged with about $200, subject to some claims amounting to about $15, which being deducted left the sum of $185, with which he charged himself as stated in the bill; that said Elizabeth lived in his family four years and was provided with board, lodging, clothing, medical attendance, &c., and was sent to the singing school at his expense; but he is not aware of her rendering any service to his family, as an equivalent therefor; that said Elizabeth's friends in Kentucky were his mother, who was a widow, and incumbered with a large family, and the complainant's step-mother, who having taken a younger sister of the complainant, to live with her, was unwilling to support said complainant; that for these reasons he brought her from Kentucky. He admits the last settlement as charged in the bill, but although it was out of time, he denies that it was fraudulent. He alleges that he has no recollection of having made any promise to the said Elizabeth, that she should live in his family free of all charge; that he may have said that he was as able to support her as any other connection, and if she never got anything, he should never charge her. That said complainant has received a negro girl from...