Rowe v. Johnson

• Citation: 108 So. 604,214 Ala. 510
• Decision Date: 06 May 1926
• Docket Number: 4 Div. 262
• Parties: ROWE et al. v. JOHNSON et al.
• Court: Supreme Court of Alabama

108 So. 604

214 Ala. 510

ROWE et al. v. JOHNSON et al.

4 Div. 262

Supreme Court of Alabama

May 6, 1926

Appeal from Circuit Court, Coffee County; W.L. Parks, Judge.

Suit by Malzie Johnson and others, by their next friend, Lena Johnson, against S.N. Rowe and another. From a judgment for plaintiffs, Laura E. Rowe, executrix of the last will and testament of S.N. Rowe, and another, appeal. Transferred from the Court of Appeals under Code 1923, § 7326. Reversed and remanded.

Somerville and Gardner, JJ., dissenting.

W.W Sanders, of Elba, for appellants.

O.S Lewis, of Dothan, and J.N. Ham and J.C. Fleming, both of Elba, for appellees.

MILLER J.

This is a suit by Malzie, Arthur, Lilla, and Oyer Johnson, minors, by their next friend, Lena Johnson, against S.N. Rowe, and the National Surety Company, as his surety on his official bond as former judge of probate of Coffee county, Ala., to recover damages for alleged neglect or omission of said Rowe, as judge of probate, to require of H.T. Edgar, as their guardian, to make a good and sufficient bond, and that he took thereon insufficient surety, and that the bond of the guardian was insufficient, which was approved by the judge of probate for that the sureties thereon were insolvent at the time the bond was approved, and that plaintiffs were damaged thereby in the sum of $654,88, with interest, assets of theirs received by said guardian, which they cannot collect from him or the sureties on his bond.

This suit was brought under section 4373, Code of 1907, which is the same as section 8146, Code of 1923. The jury returned a verdict in favor of the plaintiffs, and a judgment was rendered thereon by the court. After the judgment was rendered S.N. Rowe died and this appeal is prosecuted by Laura E. Rowe, the executrix of his last will and testament and by the National Surety Company.

H.T. Edgar made application to the probate court at Enterprise, in Coffee county, to be appointed guardian of the plaintiffs, on December 15, 1919. The petition was granted by the court, and the amount of the bond to be made by him was fixed at $940, and he made the bond, conditioned and payable as the statute requires, and with E.D. Edgar and H.P. Edgar as sureties, which was approved in the name of the judge of probate, S.N. Rowe, by his clerk at that office on December 15, 1919.

The plaintiffs, by their next friend, in June, 1921, filed petition with said Rowe, as judge of probate, to have H.T. Edgar, as their guardian, removed, on the ground he failed to make and file an inventory of their estate, and had received their money, put it to his own use and benefit, and made no report thereof. The court on the hearing found the averments true, ordered the guardian removed, and directed him to file his accounts for final settlement of his guardianship. The guardian failed to make final settlement during the term of office of Judge Rowe, but did, after being attached under orders of Judge Carnley, as judge of probate, successor to Judge Rowe, file his account for final settlement, and on April 30, 1923, the settlement was heard in this probate court, and decree was rendered, adjudging this guardian was due the plaintiffs the sum of $654.88, and directed execution therefor to issue against said H.T. Edgar and the sureties on his bond. Execution issued and was returned no property found. These minors, plaintiffs, were all under the age of 14 years. Their guardian received for them not exceeding $660.63, which was their entire estate. The principal of the estate of each was about $140. Lena Johnson is the mother and next friend of these children, plaintiffs in this cause. It appears that their father was dead when H.T. Edgar was appointed and qualified as their guardian. Their mother was examined as a witness, and she testified, in part, as follows:

"These children, the plaintiffs, were living with me at the time the guardian's bond was executed, and they have lived with me ever since. I have no property of my own, no estate of my own, and I have no income, but I have had the care and custody and the maintenance of these children. I have had to take care of them, and the guardian didn't pay me anything. After Mr. Edgar was appointed guardian, I called on him for contributions to the expense of taking care of the children.

"At this point the defendants' counsel made known to the court that the defendants expected to prove, and they offered to prove by this witness, that the guardian contributed or paid to the witness, as the mother of the plaintiffs, the money which came into his hands as guardian, belonging to the estate of said children, and that it was so paid for the purpose of maintaining, supporting, educating, and caring for said children in a manner suitable to their condition and station in life, and under such circumstances as that a court of equity would allow the guardian credit on final settlement, and plaintiffs' counsel objected to the proposed proof, on the ground that the said probate decree of April 30, 1923, was conclusive upon the defendant S.N. Rowe, as former probate judge, and upon the other defendant, as his surety, and the court sustained the plaintiffs' objection, and declined to permit the defendants to prove that the guardian had made such payments or disbursements of the funds which came into his hands as guardian, and to that ruling the defendants reserved an exception. The trial court remarked, in dealing with the proposed proof and the plaintiffs' objection thereto, that he would hold that the decree is conclusive against the offer of Judge Rowe to question or contradict it, and that the decree is binding on Judge Rowe, and that neither he nor his surety would be allowed to show or prove anything that contradicted the recitals of the decree."

"A judgment is admissible between any parties to show the fact of the rendition thereof; between parties and privies thereto it is conclusive as to the matter directly in issue, until reversed or set aside." Section 7700, Code of 1923; section 4002, Code of 1907. This decree on final settlement of the guardianship is conclusive as to all matter directly in issue between the parties, and their privies thereto. The defendant Rowe, ex-probate judge, was not necessary

nor a proper party to that settlement, and was not a party to it. Was defendant Rowe a privy thereto? "It is true, as a general rule, that a judgment or decree is binding on parties and privies; but, technically speaking, there can be no privity, where there is not an identity of interest." Winston v. Westfeldt, 22 Ala. 760, 771, 58 Am.Dec. 278. The defendant Rowe has no identity of interest with either party to the guardianship settlement decree. He owns and has no interest in it.

A person to be in privity must be included in these classes, viz.:

"A privy in blood, or estate; or in law." McLelland v. Ridgeway, 12 Ala. 482, 485.

"To be a privy to another, a man must claim by or under that other by blood, as heir, by representation, as executor, or by contract, as vendee, assignee, and the like; and a privy must come after him to whom he is privy, and never precedes." Crutchfield's Heirs v. Hudson, 23 Ala. 393, 400.

It is clear and plain that defendant Rowe was neither a party to that probate proceeding and decree, nor is he a privy thereto. He does not come within either of the categories in respect to the parties to that proceeding. Authorities supra. And he is not bound nor concluded by that decree when he was not a party to it, and is not a privy thereto, and did not possess the power to make himself a party. He had no right in that proceeding to introduce evidence and cross-examine witnesses. He had no right therein to ascertain and present the truth as to the debits or credits that should be made on the settlement between the guardian and the wards, and, in justice he should not be and is not bound by the result and the amount of that decree as conclusive of the amount of damages sustained by the plaintiffs for his neglect or omission in taking and approving the bond of their guardian with insufficient surety, if true. He is entitled to and should have his day in court on that issue. McLelland v. Ridgeway, 12 Ala. 482; Shamblin v. Hall, 123 Ala. 541, 26 So. 285; Kilgore v. Kilgore, 103 Ala. 614, 15 So. 897, and authorities supra.

The father of the plaintiffs was dead, their mother had no property and no income. She was unable to maintain and support them according to the evidence. They had only about $140 each in the hands of their guardian, and each was under 14 years of age.

In writing on final settlement between guardian and ward, this court, in Starling v. Balkum, 47 Ala. 314, 316, wrote:

"It is within the authority of the probate court to protect the expenditure, when it exceeds the income, in such a case as the court would have ordered it."

And under the statute on application of the guardian the court could have ordered the guardian to appropriate so much or such part of the principal of the estate of the minors as may be necessary for his maintenance and education, if the income of the estate is insufficient for such maintenance and education in a manner suitable to their prospects and condition in life. Section 8177, Code of 1923; section 4404, Code of 1907.

From the evidence the income from and the principal of the estate of the plaintiffs were insufficient for their maintenance and their mother was unable to do so. If the estate, the principal of these wards, the plaintiffs, was used by their guardian, through their mother, for maintaining or supporting or educating them, then their guardian, on the settlement, should have been credited therefor, and the defendants should have been allowed by the trial court in this cause to make proof...