Painter v. Maudlin

• Decision Date: 29 October 1898
• Citation: 119 Ala. 88,24 So. 769
• Parties: PAINTER v. MAUDLIN ET AL.
• Court: Alabama Supreme Court

24 So. 769

119 Ala. 88

PAINTER v. MAUDLIN ET AL.

Supreme Court of Alabama

October 29, 1898

Appeal from probate court, Dale county; W. W. Morris, Judge.

On May 10, 1893, W. G. Matthews was appointed and duly qualified as guardian of the appellees, Mary Maudlin and Whiteford Maudlin. The appellant, W. R. Painter, was a surety on the guardian's bond executed by W. G. Matthews. On the final settlement of the guardianship of W. G. Matthews, there was a decree rendered against him in favor of said minors. On this decree execution was issued, and was levied upon the property of the appellant, as being a surety on the guardian's bond. The defendant moved the court to quash the execution upon the ground that the bond which he signed as the bond of W. G. Matthews, guardian, was not signed by said Matthews himself. Upon the hearing of the motion to quash the execution, a decree was rendered overruling said motion. From this decree the present appeal is prosecuted, and the rendition of said decree is assigned as error. Reversed.

Espy &amp Farmer and Soelie & Kirkland, for appellant.

Borders & Carmichael, for appellees.

COLEMAN J.

Upon final settlement of his accounts by W. G. Matthews as guardian, execution issued against him, and certain parties as sureties on his bond. The appellant moved the court to quash the execution, and the present appeal is prosecuted from the orders and judgment of the court upon the motion to quash the execution. There are several assignments of error but only two material questions are raised. It is an admitted fact that the guardian himself, the principal, though his name appears in the body of the bond, never signed the bond and the facts stated in the motion, which are admitted to be true, show that movant has been guilty of no laches or other acts which can operate as a waiver of his right to insist upon the defect, if indeed it be such. The question is whether the sureties are bound, and the court's right to issue execution on the bond. This question has been decided by different courts, of great learning, both ways. Some of the authorities may be found cited to the case of Gay v Murphy, 134 Mo. 98, 34 S.W. 1091, and 56 Am. St. Rep. 496, and City of Deering v. Moore, 86 Me. 181, 29 A. 988, and 41 Am. St. Rep. 534. It is the opinion of the court that if the bond was not executed by the guardian as principal, as seems to have been admitted, it is not a statutory bond, and...