Southern Sur. Co. v. Burney
Decision Date | 12 September 1912 |
Citation | 126 P. 748,34 Okla. 552,1912 OK 589 |
Parties | SOUTHERN SURETY CO. v. BURNEY ET AL. |
Court | Oklahoma Supreme Court |
Syllabus by the Court.
Evidence examined, and held sufficient to sustain the judgment.
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.
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.
Commissioners' Opinion, Division No. 1. Error from District Court, Bryan County; D. A. Richardson, Judge.
Action by Clara May Burney, a minor suing in the name of her legal guardian, A. L. Burney, and another, against the Southern Surety Company. Judgment for plaintiffs, and defendant brings error. Affirmed.
Hatchett & Ferguson, of Durant, and J. H. Huckleberry, of Muskogee for plaintiff in error.
Connell & Tyree, of Durant, for defendants in error.
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 Okl. 519, 69 P. 893, our Supreme Court, speaking through Mr. Justice Hainer on an identical subject, said: 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."
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: See, also, Scofield v. Churchill, 72 N.Y. 565; Deobold v. Oppermann, 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 Or. 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.
In Irwin v. Backus, 25 Cal. 214, 85 Am. Dec. 125, the court, speaking on this question, says: ...
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