S. Sur. Co. v. Jones

• Decision Date: 23 May 1922
• Docket Number: Case Number: 10688
• Citation: 1922 OK 186,90 Okla. 285,214 P. 727
• Parties: SOUTHERN SURETY CO. v. JONES et al.
• Court: Oklahoma Supreme Court

1922 OK 186

214 P. 727

90 Okla. 285

SOUTHERN SURETY CO. v. JONES et al.

Case Number: 10688

Supreme Court of Oklahoma

Decided: May 23, 1922

Syllabus

¶0 1. Guardian and Ward--Relationship--Effect of Death of Guardian.

In a guardianship proceeding the guardian is a managing agent for his ward; nobody is interested in his conduct except the ward, and his duty is primarily to account to the ward rather than to the court, and the guardianship terminates by the death of the guardian, and when the guardian dies the trust does not pass to his executor or administrator. His personal representative stands toward the ward as any third person having money or property of the ward in his possession.

2. Pleading--Right of Defendant to Plead After Default--Discretion of Court.

The question of permitting a defendant to plead after default is discretionary with the trial court; and its action will not be reversed unless it appears that such discretion has been abused to the manifest injury of the party complaining.

3. Trial--Time of Trial--Effect of Pleadings After Issues Made Up.

When the issues have once been fully made up by the filing of pleadings or by failure to file them, the provisions of the statute, section 5043, Rev. Laws 1910, has spent its force, and thereafter any change in the issues caused by the filing of new or amended pleadings by leave of the court or consent of the parties does not, by reason of said action, necessarily work a delay of the trial.

Error from District Court, Bryan County; J. M. Crook, Judge.

Action by Lula Jones and another against the Southern Surety Company to recover on guardian's sale bond. Judgment for plaintiffs, and defendant brings error. Affirmed.

Hatchett & Ferguson, Stanard & Ennis, and M. L. Hankins, or plaintiff in error.

Hatchett & Semple, for defendants in error.

JOHNSON, J.

¶1 On October 20, 1919, the plaintiffs, Lula Jones and Luella Jones, minors, by their legal guardian, Virginia Jones, commenced an action in the district court of Bryan county, against the Southern Surety Company, a corporation, to recover the sum of $ 784.30 on a guardian sales bond alleged to have been executed by the defendant as surety for Osborne Jones, as guardian of the plaintiffs, Lula Jones and Luella Jones, in the county court of Bryan county, in cause No. 1071. The case was tried to the court on October 20, 1919. The court rendered a judgment against the defendant in the sum of $ 740.80, with interest thereon at the rate of six per cent. per annum until paid. Defendant filed a timely motion for a new trial, which was overruled by the court, and the defendant thereafter commenced this proceeding in error to reverse said judgment. For convenience, the parties will hereinafter be referred to as plaintiffs and defendant, respectively, as they appeared in the trial court. The defendant has assigned 16 specifications of error in its petition in error, which have been presented and argued under five propositions, which are as follows:

"(1) The guardian upon whose bond this Suit was filed having died without making a final settlement of his guardianship affairs in the county court, the district court was without jurisdiction or authority to render judgment against the surety, except upon an accounting being first had of the guardianship matters in the district court in said action.

"(2) In a suit against the surety on the bond of a deceased guardian where no final accounting or settlement of the guardianship affairs has been had during the lifetime of the guardian, the petition is demurrable unless the same is one in accounting.

"(3) Where a guardian dies, without having made a final settlement of his guardianship affairs in the county court, the personal representative or heirs of the deceased guardian are necessary parties in an action in the district court against the surety upon the deceased guardian's bond.

"(4) Where a summons has been regularly issued and the sheriff's return shows an alleged service thereof, and the defendant having filed a special appearance and motion to quash such service, the court clerk is without jurisdiction or power to issue an alias summons except upon order of the court, and such alias summons is void.

"(5) It is error for a district court to force a defendant over its protest and objection, to trial until ten days after the issues in said case have been made up."

¶2 A brief summary of the allegations and averments in the plaintiffs' amended petition and the testimony in support thereof, shows that on the 13th day of October, 1908, Osborne Jones, now deceased, who was the father of the plaintiffs, Lula Jones and Luella Jones, procured letters of guardianship for said minors in the county court of Bryan county, in cause No. 1071, and assumed possession of the personal and real property of the plaintiffs, and thereafter sold certain lands inventoried as property belonging to the plaintiffs' estate, and received therefor the sum of $ 820, and thereafter, on the 10th day of November, 1909, he flied in the county court in said cause an annual report showing that he had expended from the proceeds of the sale of said land the sum of $ 310.70, leaving a balance due the plaintiffs of $ 508.30, and that thereafter in the mouth of February, 1915, and before the expenditure of any further sum chargeable to these plaintiffs, the said Osborne Jones died without having accounted for, or otherwise paid over to these plaintiffs, the said money, upon which amount the plaintiffs seek to recover interest at the rate of 6 per cent. per annum from said November 10, 1909, alleging that no part of the principal and interest had ever been paid them; and further alleging that before concluding the sale of said land as such guardian the bond sued upon was executed, and that the defendant signed the same as surety, and the same was approved by the court and filed in said cause No. 1071.

¶3 The defendant filed an answer and cross-petition containing general and specific denials, and thereafter and therein alleged, in substance, that at the time of the death of the said Osborne Jones, in February, 1915, the guardianship proceeding in cause No. 1071 was still pending, and that no final report or account of said guardianship had been made or final order or decree had been made, and that by reason thereof no suit could be brought in the court to settle said guardianship account; and further alleged that after the death of Osborne Jones, one Gray Nickels was appointed administrator of the estate of Osborne Jones, deceased, by the county court of Bryan county, filed on July 16, 1915, in probate case No. 1730, and immediately thereafter took charge of all the estate of the said Osborne Jones, deceased, and proceeded to administer upon and dispose of said estate as required by law, and that the inventory of said estate showed that such estate consisted of 220 acres of land, the equity in which was valued at $ 3,200, and personal property of the value of $ 2,743, besides the sum of $ 61.67 in small notes; that such administrator proceeded to close said estate without having filed and settled the final account of the said Osborne Jones as guardian of the plaintiffs, and without said plaintiffs or their legal guardian having filed with such administrator their claim against the estate for the amount of the liability sued for herein, alleging that upon the death of the said Osborne Jones the whole of his property descended to his heirs subject to the payment of his debts, and that said property was subject to the payment of his debts, and that if said deceased was indebted to plaintiffs as alleged, he left ample property with which to pay same, and that plaintiffs were entitled to have the debts sued for herein, if any existed, paid out of such estate before any portion thereof should be expended in other matters; and that the plaintiffs failed to present their claim to the administrator, and that on the application of the plaintiffs and their legal guardian the said administrator paid the money in his hands, amounting approximately to $ 2,743, to said plaintiffs and the widow and other children of said deceased, for the purchase of groceries, dry goods, schooling expenses, and other necessities of living, and that said plaintiffs and the widow of said deceased and the other children received the full benefit thereof; that in addition thereto there was delivered to the plaintiffs and the other heirs of said deceased a large acreage of fertile and valuable land, which said plaintiffs received as heirs at law of said Osborne Jones, deceased, and which said property was subject to the payment of any debts which the said Osborne Jones might owe, including said alleged claim sued for in this action, and that said property so recovered by the plaintiffs and other heirs exceeded in value many times the alleged claim which the plaintiffs sued for in this action.

¶4 As a cross-petition and counterclaim the defendant alleges that in the event the bond sued upon in this action be found to be a lawful, legal, and binding obligation, and if defendant is in any amount indebted to the plaintiffs, then, it alleges, there is due and owing it from the plaintiffs as unpaid premiums on said bond the sum of $ 74, an itemized statement of which was attached to said cross-petition marked Exhibit "A"; and prays that judgment in said sum with interest thereon be offset against any amount found due the plaintiffs.

¶5 The plaintiffs filed a reply to the answer and cross-petition of the defendant, consisting of general and special denials alleging that the plaintiffs had not received money or property from the estate of the deceased guardian, Osborne Jones, in a sufficient amount to cover the defalcation sued for in this action, or any other sum, but alleging that the estate of said Osborne Jones was insolvent at the time of his death; that they were under no obligation or duty to present any claim to the administrator of the estate...