Short v. Thompson

• Decision Date: 20 February 1936
• Docket Number: 6216
• Citation: 56 Idaho 361,55 P.2d 163
• Parties: MARY SHORT, Respondent, v. ADA SHORT THOMPSON, Otherwise Known as ADA SHORT, Defendant, and AMERICAN SURETY COMPANY OF NEW YORK, a Corporation, Appellant
• Court: Idaho Supreme Court

55 P.2d 163

56 Idaho 361

MARY SHORT, Respondent, v. ADA SHORT THOMPSON, Otherwise Known as ADA SHORT, Defendant, and AMERICAN SURETY COMPANY OF NEW YORK, a Corporation, Appellant

No. 6216

Supreme Court of Idaho

February 20, 1936

GUARDIAN AND WARD-SETTLEMENT OF ACCOUNT-LIABILITIES ON BOND-PROBATE COURT-JURISDICTION-JUDGMENTS, CONCLUSIVENESS OF.

1. Probate court is "constitutional court" vested with exclusive original jurisdiction in all matters of probate settlement of estates of deceased persons, and appointment of guardians (Const., art. 5, sec. 21).

2. "Court of general jurisdiction" is one whose judgment is conclusive until modified or reversed on direct attack, and such court is competent to decide on its own jurisdiction, and exercise such jurisdiction to final judgment without setting forth the evidence.

3. Probate court as regards its jurisdiction of probate and guardian matters is "court of general jurisdiction," and its record is absolute verity (Const., art. 5, sec. 21).

4. Order of probate court settling final account of executor administrator or guardian is "judgment in rem," which is final and conclusive against all parties after time for appeal has expired (Const., art. 5, sec. 21).

5. Probate courts are "courts of record," and have original jurisdiction in all matters of probate, and judgments of such courts cannot be collaterally attacked (Const., art. 5, sec. 21).

6. Order of probate court adjudging guardian liable for transfer of ward's fund without permission of probate court held binding on guardian's surety, notwithstanding surety was not party to proceeding and no issue was raised as to guardian's right to make such transfer, since probate court is not a court of law or equity within Constitution (Const., art. 5, sec. 21).

7. Statutes governing settlement of accounts of executors and administrators held applicable to guardians (I. C. A., secs 1-1202, 15-1113, 15-1118, 15-1120, 15-1834).

8. Although no exceptions are filed to guardian's report probate court has duty to examine into account and determine whether it is correct before approving report (I. C. A., secs. 1-1202, 15-1113, 15-1118, 15-1120, 15-1834).

9. Where probate court had jurisdiction to determine that guardian's unauthorized removal of ward's fund was illegal, if such court erred in decreeing that guardian was liable therefor, guardian and surety could have moved for correction of decree (I. C. A., secs. 1-1202, 15-1113, 15-1118, 15-1120, 15-1834).

10. Where probate court had jurisdiction to determine that guardian's unauthorized removal of ward's fund was illegal and judgment decreeing that guardian was liable therefor had become final, judgment held conclusive on all parties and could not be attacked in ward's action against guardian's surety (I. C. A., secs. 1-1202, 15-1113, 15-1118, 15-1120, 15-1834; Const., art. 5, sec. 21).

11. Surety on guardian's bond held chargeable with notice of every proceeding in probate court affecting guardian's liability, and guardian's appearance in such court was surety's appearance; hence surety could not contend that it had not had its day in court or that it had been deprived of property without due process (I. C. A., secs. 1-1202, 5-905, 15-1113, 15-1118, 15-1120, 15-1808, 15-1834; Const., art. 5, sec. 21).

12. Settlement of account with ward or probate court is essential to maintenance of action on guardian's bond (I. C. A., sec. 15-1808).

13. Judgment of probate court holding guardian liable for unauthorized removal of ward's fund being appealable and order having become final without appeal, order was res judicata as to amount due ward, as regards liability of guardian's surety (I. C. A., secs. 11-401, 15-1808).

14. Where ward sued guardian's surety for amount probate court had adjudged guardian owed ward, that complaint contained allegations on which judgment in probate court was based did not change cause of action, or waive right to rely on estoppel by judgment (I. C. A., secs. 1-1202, 5-905, 15-1113, 15-1118, 15-1120, 15-1808, 15-1834).

15. Contention that guardian and ward had colluded to secure judgment against surety could not be considered on appeal where such issue was not raised in trial court.

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Charles F. Koelsch, Judge.

Action for recovery on guardian's bond. Judgment for plaintiff. Affirmed.

Judgment affirmed with costs to respondent.

Richards & Haga, for Appellant.

"Probate courts have no common law jurisdiction, but the nature, extent and exercise of their jurisdiction depend upon the terms of the constitution or statutory grant. They cannot exercise any powers other than those which have been expressly conferred upon them or which are necessarily implied from those expressly conferred; and their powers are not to be extended by construction or by unnecessary implication." (15 C. J., p. 1011, sec. 426; State v. Dunlap, 28 Idaho 784, 156 P. 1141, Ann. Cas. 1918A, 546.)

While probate courts have original jurisdiction in all matters of probate and appointment of guardians (sec. 21, art. 5, Const.), their civil jurisdiction is limited by the Constitution and they have no equity jurisdiction except such as is incidental to the probate jurisdiction. (Dewey v. Schreiber Implement Co., 12 Idaho 280, 85 P. 921.)

In support of our contention that the court, under the final account and petition for discharge, and the failure of the former ward to make any contest or file exceptions to the account, was without jurisdiction or authority to determine that the guardian had been negligent and was personally responsible for the investments made, we call attention to the following supporting authorities: Wainwright v. Smith, 106 Ind. 239, 6 N.E. 333, 334; Sohl v. Wainwright Trust Co., 76 Ind.App. 198, 130 N.E. 282, 285; Taylor v. Calvert, 138 Ind. 67, 37 N.E. 531, 536; In re Bolin's Estate, 22 Okla. 851, 98 P. 934.

Luther W. Tennyson, for Respondent.

Where no appeal has been taken therefrom, the decree of the probate court settling the final account of the guardian and directing the guardian to pay to the ward a certain sum found due is binding and conclusive both upon the guardian and her surety. And upon the failure of the guardian to obey the same, the liability of the surety attaches and it cannot go behind the decree of the probate court to inquire into the merits. (Knowles v. Kasiska, 46 Idaho 379, 386, 268 P. 3; Oliveri v. Maroncelli, 94 Mont. 476, 22 P.2d 1054; Southern Surety Co. v. Burney, 34 Okla. 552, 126 P. 748, 43 L. R. A., N. S., 308, 313-316.)

The sureties on the bond of a guardian contract with reference to the final accounting and decree of the probate court, and agree that their principal will do what he or she is ordered to do when the guardian's final account is settled by the court. And the surety on the guardian's bond in this case is liable for defalcation of the guardian occurring prior to the making and approving of the bond, if any. (Southern Surety Co. v. Burney, supra; Aetna Indemnity Co. v. State, 101 Miss. 703, 57 So. 980, 39 L. R. A., N. S., 961, 966, 967; 28 C. J., Guardian and Ward, sec. 492, p. 1292; I. C. A., secs. 57-823, 57-831.)

The approval by the probate court of the annual reports of the guardian showing that the trust funds were invested in the savings department of the Boise City National Bank was not a ratification of the act of the guardian in making such investment. (Luke v. Kettenbach, 32 Idaho 191, 197, 198, 181 P. 705; Mumford v. Rood, 36 S.D. 80, 153 N.W. 921, 923, 44 L. R. A., N. S., note, p. 941; Re O'Brien, 80 Neb. 125, 113 N.W. 1001, 1003.)

AILSHIE, J. Givens, C. J., and Morgan and Holden, JJ., concur. Budge, J., expresses no opinion.

OPINION

AILSHIE, J.

On May 7, 1924, Ada Short was appointed guardian of her minor daughter, Mary Short, and served as such guardian until September 20, 1933; Mary became of age in May of that year. Mrs. Short was required to give a bond in the amount of $ 7,500 and the same was executed by the guardian as principal and A. E. Boyd and O. F. Short as sureties. By a judgment obtained for the accidental death of her father, Mary received $ 7,772.28 and this amount was deposited by her guardian in a savings account in the Pacific National Bank. On January 16, 1929, Ada Short Thompson withdrew the funds from the bank (which at that time amounted to $ 8,917.78) and deposited same in the Boise City National Bank in a savings account. In lieu of the former bond she gave a new bond in the amount of $ 8,000, executed with the American Surety Company. On August 1, 1932, the latter bank went into the hands of a receiver; at that time the entire amount of principal and interest, at 4 per cent, in the savings account, amounted to $ 10,244.52.

On May 11, 1933, the first dividend amounting to $ 1,707.42 was obtained by the guardian and given to Mary. September 7, 1933, final report and accounting of the guardian was filed in the probate court and due notice of hearing thereon was given. On September 20th following, a hearing in the probate court was had on the report and account and a decree was entered, directing the guardian to pay over to the ward the sum of $ 8,537.10. For convenient reference the guardian's report is set out in full in footnote 1 and the decree of the probate court approving the report and settling the account as note 2. ^[*]

On January 3, 1934, complaint was filed in the district court, praying for judgment against defendants, the guardian and surety company, in the sum of $ 8,000, together with interest at 6 per cent from September 20, 1933, and for costs of suit, etc. On September 10th following the case was set for trial; jury was waived and the case was heard before the judge. D...