Peterson v. Bell, 5565

• Citation: 298 P. 379,50 Idaho 521
• Decision Date: 16 April 1931
• Docket Number: 5565
• Court: United States State Supreme Court of Idaho
• Parties: CARL G. PETERSON, Sometimes Signed CARL PETERSON, an Insane and Incompetent Person, by and Through His Duly Appointed Guardian Ad Litem, P. C. O'MALLEY, Appellant, v. CHARLES M. BELL, as Principal, and THE UNITED STATES FIDELITY & GUARANTY COMPANY, a Corporation, as Surety, Respondents

298 P. 379

50 Idaho 521

CARL G. PETERSON, Sometimes Signed CARL PETERSON, an Insane and Incompetent Person, by and Through His Duly Appointed Guardian Ad Litem, P. C. O'MALLEY, Appellant, v. CHARLES M. BELL, as Principal, and THE UNITED STATES FIDELITY & GUARANTY COMPANY, a Corporation, as Surety, Respondents

No. 5565

Supreme Court of Idaho

April 16, 1931

PLEADING-ANSWER-GENERAL DENIAL - MOTION TO STRIKE - APPEAL AND ERROR-FINDINGS UNDISTURBED, WHEN.

1. Motion to strike answer which put plaintiff on proof as to his allegations and separately set forth defendants' affirmative defense in accordance with statute held properly denied (C. S., sec. 6694, as amended by Laws 1925, chap. 10).

2. Where there is reasonable evidence sustaining findings of trial court, supreme court will not disturb such findings.

APPEAL from the District Court of the Fifth Judicial District, for Bannock County. Hon. Doran H. Sutphen, Acting Judge.

Action in damages and for judgment on surety bond. Judgment for defendants. Affirmed.

Judgment affirmed, with costs to respondent.

P. C O'Malley, for Appellant.

The supreme court of the state of Idaho has recently and repeatedly held that a general denial is insufficient to raise an issue under our statutes, other than the facts pleaded did not exist.

"Denials of allegations of a verified complaint must be specific." (Hayes v. Robinson, 35 Idaho 265 206 P. 173.)

"The answer discloses that each of these allegations was denied generally; such denial is insufficient to raise an issue under our statutes. C. S., sec. 6694, provides that where the complaint is verified, the defendant must deny specifically each material allegation." (Cleland v McLaurin, 40 Idaho 371, 376, 232 P. 571.)

"A specific denial of all the allegations of the complaint has the same effect so far as the issues are concerned as a general denial." (Larsen v. Roberts, 32 Idaho 587, 187 P. 941.)

B. A. McDevitt and Peterson, Baum & Clark, for Respondents.

Where there is any evidence in the record to support the findings of the trial court, such findings will not be disturbed on appeal even though on the whole the evidence may preponderate against them. (Clark's Idaho Digest, "Appeal and Error," sec. 1258, p. 120, citing scores of Idaho cases.)

A general denial coupled with affirmative defenses is proper pleading. (Sess. Laws 1925, chap. 10, p. 12, amending sec. 6694, C. S.)

MCNAUGHTON, J. Lee, C. J., and Budge, Givens and Varian, JJ., concur.

OPINION

MCNAUGHTON, J.

On the thirteenth day of July, 1920, Carl Peterson was adjudged insane. On the ninth day of August, 1920, the defendant Bell was appointed by the probate court guardian of the estate of the said Carl Peterson. The estate consisted of two improved lots in the Village of Lava Hot Springs: a pool-hall and barber-shop, appraised at $ 4,500, and a confectionery store appraised at $ 3,500, and a small amount of personal property. The real property was subject to a mortgage for $ 1200. In entering upon the discharge of his duties as guardian, Bell gave and filed a surety bond executed by the defendant United States Fidelity & Guaranty Co., in the sum of $ 3,000 and conditioned for the faithful discharge of his duties as such guardian. The guardian filed two annual accounts, disclosing his acts as such guardian and the condition of the estate. On the thirteenth day of June, 1924, the guardian filed in the probate court his third and final account and asked for discharge as guardian. He gave notice of his final account and petition for discharge as required by C. S., sec. 7753. On the return day a hearing was had upon the final account and petition for discharge. At this hearing the final account was approved by the probate court and the guardian discharged.

This adjudication upon the final account of the guardian and his discharge has not been attacked directly and has not been set aside or vacated.

Nevertheless on the twenty-seventh day of February, 1929, the guardian ad litem of the said Carl Peterson began the action now before us against the guardian and surety company in...