Reno v. McCully
| Decision Date | 10 April 1885 |
| Citation | 22 N.W. 902,65 Iowa 629 |
| Parties | RENO v. MCCULLY ET AL |
| Court | Iowa Supreme Court |
Appeal from Jasper Circuit Court.
ACTION on an official bond. Defendant McCully was clerk of the circuit court, and the other defendants are the sureties on his official bond. During his term of office, said McCully appointed one S. N. Lindley guardian of the property of plaintiff, who at that time was a minor, and it is alleged in the petition that said guardian received certain money which belonged to plaintiff, which he has never accounted for although plaintiff has attained his majority, and that he is now insolvent. It is also alleged that said McCully failed to require said guardian, at the time of his appointment, to give a bond with sufficient sureties, as required by law, but accepted a bond signed only by the guardian, and that, by the acceptance of said bond by defendant, the guardian was empowered to act as such, and that he did, in pursuance of his appointment and the acceptance of his bond, enter upon the discharge of his duties as guardian, and received said money while acting as such guardian. Defendants answered denying the allegations of the petition. There was a trial to the court, and judgment was rendered for plaintiff, and defendants appeal.
REVERSED.
Ryan Bros., for appellants.
Stahl Meredith & Stahl, for appellee.
The evidence given on the trial shows that the appointment of the guardian was made by the clerk in vacation. At the time of his appointment, the guardian filed a bond conditioned that he would account for and pay over all moneys or other property belonging to the ward which should come into his hands as such guardian. There was no surety on this bond. It was signed by the guardian alone. The oath of the guardian was indorsed on the bond, and this oath was taken before the clerk. The bond was recorded by the clerk in the book kept for that purpose, but there is no other evidence of the acceptance or approval by him of said bond. It was also proved that the guardian received certain moneys belonging to plaintiff, and that he has never accounted to plaintiff for said money, and that he is now insolvent, and that plaintiff has attained his majority.
Plaintiff's position is that it was the duty of the clerk to require the guardian to give a bond at the time of his appointment, with sufficient sureties, conditioned for the faithful performance of his duties as such guardian, and that the appointment of the guardian without requiring such bond was a violation of his official duties, for which the clerk and his sureties are liable on his bond. It is claimed that the duty of the clerk in this respect is prescribed by section 2321 of the Code. This section is as follows: "All bonds relating to probate matters shall be filed in the office of the clerk of the circuit court, and shall not be deemed sufficient until examined by the clerk, and his approval indorsed thereon." The section occurs in title 16. This title relates principally to matters pertaining to the administration and settlement of the estates of decedents. The rules governing the execution of wills and the admission of the same to probate are prescribed in the title. The appointment of executors and administrators is also provided for, and their powers and duties are defined. The manner of collecting the assets of estates, the establishment of claims against them, and their payment, and the payment of...
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Larson v. Nelson (In re Mortenson's Estate)
...solely on the ground that an application by a guardian to sell the real estate of his ward was a probate matter. In Reno v. McCully, 65 Iowa, 629, 22 N. W. 902, it was held that, under a statute providing that all bonds relating to probate matters should be filed in the office of the clerk ......