Shattuck v. Wolf

• Court: Kansas Supreme Court
• Writing for the Court: BURCH, J.
• Citation: Shattuck v. Wolf, 72 Kan. 366, 83 P. 1093 (Kan. 1905)
• Decision Date: 09 December 1905
• Docket Number: 14,320
• Parties: S. W. SHATTUCK et al. v. CATHERINE WOLF et al

83 P. 1093

72 Kan. 366

S. W. SHATTUCK et al. v. CATHERINE WOLF et al

No. 14,320

Supreme Court of Kansas

December 9, 1905

Decided. July, 1905.

Error from Sedgwick district court; DAVID M. DALE, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

PRACTICE DISTRICT COURT--Suit by a Guardian--Attainment of Majority--Discharge--Abatement--Substitution of Parties. To secure a loan of his wards' money a guardian took a note and mortgage in his own name, with the descriptive word "guardian" annexed. Afterward, for the benefit of the wards, he brought suit to collect the note and to foreclose the mortgage, using, however, the same name and addition in designating the plaintiff and in stating the cause of action. Pending the suit the wards became of age, and the guardian was discharged. The wards moved to be substituted as plaintiffs in the suit, stating the facts and claiming title to the paper. The guardian voluntarily submitted to a trial before the court of the issues tendered by the motion, with the result that the substitution was ordered. Held: (1) The suit did not abate when the wards became of age and the guardian was discharged, and revivor was neither necessary nor proper. (2) The wards were entitled to be substituted as plaintiffs in the suit in place of the guardian. (3) The proceedings for substitution were properly instituted by motion; and the court had jurisdiction to hear and determine, without further pleadings and without a jury, the facts presented by the motion. (4) The guardian waived all objections to the form of the proceeding, and is concluded by the result, except for trial errors reviewable as in other civil cases.

S. W. Shattuck, jr., for plaintiffs in error.

Blake & Ayres, for defendants in error.

BURCH J. All the Justices concurring.

OPINION

BURCH, J.

In 1882 S.W. Shattuck was appointed guardian of certain minor children. In 1885 he loaned the money of his wards, and took, to secure it, a note and mortgage running to "S. W. Shattuck, guardian." In 1893 he brought suit to recover the amount of the note and to foreclose the mortgage. The petition was entitled "S. W. Shattuck, guardian, plaintiff," and was signed in the same manner.

In 1894 the guardian filed in the probate court his final account in the guardianship proceedings, in which he took credit as guardian for the money loaned, and charged himself as guardian with the note and mortgage. He also took credit as guardian for the expenses of the foreclosure suit to the date of the settlement. The wards had then become of age, and contested the conduct of the guardian; but, after a hearing, the probate court held with him, approved his accounts, found that the note and mortgage belonged to the wards, discharged the guardian and made provision for the delivery of the securities to the owners, who, however, at the time declined to receive them. The guardian took no further steps in the foreclosure suit, but Sarah G. Shattuck, a second mortgagee, who had been made a party defendant, obtained a judgment enforcing her lien, and after many years' delay caused the land to be sold.

A short time previous to the issuance of the order upon which the land was sold the former wards filed an application to be substituted as plaintiffs in the suit in place of S.W. Shattuck, guardian, reciting the fact of his appointment as their guardian, the taking of the note and mortgage in his fiduciary capacity, their arrival at the age of maturity, the guardian's discharge by the probate court, and their ownership of the paper. When the sheriff's return of the sale of the mortgaged property was filed they interposed objections to its confirmation, and later, finding the note and mortgage in the hands of the court stenographer, they filed a motion asking that the documents be turned over to them. The Shattucks objected to the consideration of the motion for substitution on the single ground that it did not contain facts sufficient to warrant the order prayed for, but the objection was overruled, and, on January 7, 1904, the three motions referred to came on for hearing. All the parties appeared and announced themselves ready for hearing and trial, and evidence was introduced, both in support of the motions and in opposition to them. On the evidence submitted the court found in favor of the substitution of parties and directed that it be made. The hearing of the motion to confirm the sale was continued, and the note and mortgage were impounded in the possession of S.W. Shattuck, jr. (the attorney for the ex-guardian), until the further order of the court. S.W. Shattuck and Sarah G. Shattuck prosecutes error.

The plaintiffs in error argue that the guardian was a personal representative whose powers ceased upon his discharge, within the meaning of those sections of the code of civil procedure relating to the revivor of actions; that the proceedings in the district court should have been governed by the revivor statute; that the motion for substitution was in effect a motion to revive; that, because more than a year had elapsed after the powers of the guardian had ceased, the court was without jurisdiction to make the order complained of, except by consent, which was withheld; and that the general objection to the motion for substitution should have been sustained. The answer to this argument is that the suit in the district court did not abate when the wards became of age and the guardian was discharged.

Although the guardian acted for the benefit of his wards, both in taking the securities and in bringing suit to enforce them, they were drawn in such a manner that he was prima facie invested with full title to them, and with full authority to enforce them as his own. Descriptive words in commercial paper may become important if the matter of notice be involved (Loan Co. v. Essex, 66 Kan. 100, 71 P. 268; 1 Dan. Neg. Inst., 5th ed., § 271), but usually such...