S. Sur. Co. v. Burney

• Decision Date: 12 September 1912
• Docket Number: Case Number: 1954
• Citation: 1912 OK 589,34 Okla. 552,126 P. 748
• Parties: SOUTHERN SURETY CO. v. BURNEY et al.
• Court: Oklahoma Supreme Court

1912 OK 589

126 P. 748

34 Okla. 552

SOUTHERN SURETY CO. v. BURNEY et al.

Case Number: 1954

Supreme Court of Oklahoma

Decided: September 12, 1912

Syllabus

¶0 1. GUARDIAN AND WARD--Liabilities on Bonds--Sufficiency of Evidence. Evidence examined, and held sufficient to sustain the judgment.

2. SAME--Persons Concluded by Decree--Principal and Surety. Sureties on a guardian's bond are, in the absence of fraud, concluded by the decree of the county court, duly entered on a hearing on an accounting or final settlement, as to the amount of the principal's liability, although the sureties are not parties to the accounting.

3. SAME-- General and Special Bonds. The general bond required of a guardian is intended to secure to the infant the proper accounting for all funds, from whatever source they may be derived, that may come into the hands of the guardian; the special or "sales bond" required by statute is cumulative security, required and given for the benefit of the ward; and a failure on the part of the guardian to account for the proceeds of a sale of real estate will not excuse or absolve his sureties on his original or general guardian's bond.

Hatchett & Ferguson and J. H. Huckleberry, for plaintiffs in error.

Connell & Tyree, for defendant in error.

ROBERTSON, C.

¶1 On May 21, 1907, J. L. Ellington was appointed guardian of the person and estate of Clara May Burney, and on the same date gave bond in the sum of $ 1,500 for the faithful performance of his duties as such guardian, with L. W. Cruce and Charles P. Abbott as sureties. Thereafter, on the 30th day of January, 1908, said guardian gave what is commonly denominated as a "sales bond" in the sum of $ 1,000, with the Southern Surety Company of Atoka as surety, to secure the faithful performance of the duties of said guardian relative to the sale of certain real estate belonging to his ward. On February 24, 1908, said guardian gave a regular guardian's bond in the sum of $ 1,000, with the Southern Surety Company of Atoka as surety, which last-mentioned bond was given in lieu and in place of the first bond, signed by Cruce and Abbott as a general guardian's bond. The ward, becoming dissatisfied with her guardian's conduct, filed a petition for an accounting, and a citation issued out of the county court, and the guardian was compelled to render an account of his doings as guardian, in the county court, where, after a hearing, an order was entered, finding him indebted to his ward in the sum of $ 1,570, and directing him to pay said amount at once, and also removing him from his office. An appeal was taken by the guardian to the district court, and the judgment of the county court was affirmed in all things, except the guardian was given a credit of $ 385 on the amount, and a judgment was thereupon entered in the district court showing the said guardian to be indebted to his ward for money misappropriated in the sum of $ 1,185. On that judgment the present action is based. At the trial of this cause in the district court, a judgment was entered in favor of the ward and against J. L. Ellington and the Southern Surety Company of Atoka for the full amount prayed for. The surety company filed its motion for new trial, which was overruled and exceptions taken, and it brings this appeal to reverse said judgment, and assigns as error: First. The evidence does not show sufficient facts to support the verdict returned against the defendant, Southern Surety Company of Atoka. Second. The general bond could not be held for the proceeds of the sale of real estate, and the court erred in sustaining a demurrer to that part of defendant's answer. As to the first question raised by the plaintiff in error, we are satisfied that there is ample, competent evidence to sustain the verdict as returned by the jury. We find in the record a judgment of the district court of Bryan county, entered prior to the bringing of this action, by which the amount due from the guardian is determined, and which judgment also directs him to pay over that sum to the person entitled to receive the same. The record further discloses that J. L. Ellington, the former guardian of Clara May Burney, had been removed from his office by a judgment of the county court of Bryan county, which had later been affirmed, on appeal, by the district court of said county, and that A. L. Burney had been appointed in his stead, and had qualified as such, and at the time of the bringing of this suit was acting in that capacity; that by virtue of the judgment of the district court ordering Ellington to pay the sum of money found to be due his ward, the said A. L. Burney had made demand on him, also, for the amount found due; and that Ellington refused to pay the same, or any part thereof. We think this was sufficient evidence to sustain the verdict returned by the jury against the defendant; and a judgment rendered by the county court upon a final accounting by an administrator or guardian is final and conclusive, in the absence of fraud, unless reversed or modified on appeal; and the record shows that in this case the judgment of the county court determining the amount of the defalcation was affirmed by the district court of Bryan county. In Greer et al. v. McNeal et al., 11 Okla. 519, 69 P. 893, our Supreme Court, speaking through Hainer, J., on an identical subject, said:

"We think that the findings and judgment of the probate court were final and conclusive, not only as against Pentecost, as principal on the bonds, but they were also final and conclusive against the sureties thereon. We think it is wholly immaterial when Pentecost misappropriated or embezzled the funds. In our opinion, the moment Pentecost failed or refused to comply with the judgment and order of the probate court he committed a breach in the bond, and rendered the sureties jointly and severally liable for the full amount of said judgment."

¶2 And, after a thorough review of all the authorities on this question, the court in that case announced the following rule, which we believe to be supported by the great weight of authority:

"That the sureties upon an administrator's bond are, in the absence of fraud, concluded by the decree of the probate court, duly rendered upon a final settlement and accounting by their principal, as to the amount of the principal's liability, although the sureties on the bond are not parties to the accounting."

¶3 In Stovall et al. v. Banks et al., 10 Wall. 583, 19 L. Ed. 1036, the Supreme Court of the United States, sustaining a like contention, said:

"It has been argued on behalf of the defendants in error that the decree of the superior court, if admitted, would have been only prima facie evidence against the sureties in the bond. Were that conceded, it would not justify the exclusion of the evidence. But the concession cannot be made. The decree settled that the administrator of the intestate, Alfred Eubanks, held in his hands sums of money belonging to the equitable plaintiffs in this suit, as distributees of the intestate's estate, which he had been ordered to pay over by a court of competent jurisdiction; and the record established his failure to obey the order. Thereby a breach of his administration bond was conclusively shown. Certainly the administrator was concluded. And the sureties in the bond are bound to the full extent to which their principal is bound. A principal in a bond may be liable beyond the stipulations of the instrument, independently of them; but so far as his liability is in consequence of the bond, and by force of its terms, his surety is bound with him. There may be special defenses for a surety arising out of circumstances not existing in this case; but, in their absence, whatever concludes his principal as an obligor concludes him. He cannot attack collaterally a decree made against an administrator for whose fidelity to his trust he has bound himself." See, also, Scofield v. Churchill, 72 N.Y. 565; Deobold v. Opperman, 111 N.Y. 531, 19 N.E. 94, 2 L.R.A. 644, 7 Am. St. Rep. 760; Kenck v. Parchen, 22 Mont. 519, 57 P. 94, 74 Am. St. Rep. 625; Botkin v. Kleinschmidt, 21 Mont. 1, 52 P. 563, 69 Am. St. Rep. 641; Thompson v. Dekum, 32 Ore. 506, 52 P. 517, 755; Meyer v. Barth, 97 Wis. 352, 72 N.W. 748, 65 Am. St. Rep. 124; Nevitt v. Woodburn, 160 Ill. 203, 43 N.E. 385, 52 Am. St. Rep. 315.

¶4 In Irwin v. Backus, 25 Cal. 214, 85 Am. Dec. 125, the court, speaking on this question, says:

"As a general rule, sureties upon official bonds are not concluded by a decree or judgment against their principal, unless they have had their day in court, or an opportunity to be heard in their defense; but administration bonds seem to form an exception to this general rule, and the sureties thereon, in respect to their liability for the default of their principal, seem to be classed with such sureties as covenant that their principal shall do a particular act. To this class belong sureties upon bail and appeal bonds, whose liability is fixed by the judgment against their principal. This distinction seems to be founded upon the terms of the obligation into which the sureties upon an administration bond enter, which are that their principal shall faithfully perform all the duties imposed upon him by the nature of his trust, and will account for and pay over all money which may come into his hands, pursuant to the order and decrees of the probate court. The account must be rendered to and settled by the court, and the money must be paid out and distributed by and pursuant to the orders and decrees of the court; and the undertaking of the sureties is that their principal will do all this. * * * They may show in defense, either that the bond was not made, or that the decree was not made, or, if made, that the same has been obeyed, or that the same was obtained by fraud or collusion; but they cannot show that the court has erred in making the decree, or that no assets ever came into the possession of the administrator,

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