Stanley v. Dishough

• Decision Date: 21 January 1888
• Citation: 6 S.W. 896,50 Ark. 201
• Parties: STANLEY v. DISHOUGH
• Court: Arkansas Supreme Court

6 S.W. 896

50 Ark. 201

STANLEY v. DISHOUGH

Supreme Court of Arkansas

January 21, 1888

APPEAL from Drew Circuit Court, J. M. BRADLEY, Judge.

STATEMENT.

C. L Dishough, a minor, was the owner of an old gin house and gin stand, with the running gear thereto attached, and a cotton press. His guardian, J. P. Stanley, sold this property without any order of the probate court authorizing him to do so, to J. M. Walton, for the sum of $ 275.00, for which he received Walton's note. Walton removed the gin stand house, press, etc., from land belonging to the minor, on which they were situated, and put them up on land belonging to himself. Stanley was afterwards succeeded in the guardianship of C. L. Dishough by J. B. Dishough, and filed in the probate court his final account. On this account he was credited with the amount of Walton's note, which remained unpaid, and had been delivered, with other property of his ward, to his successor in the guardianship. He was also credited, by $ 100 for extra services and attorney's fees. J. B. Dishough, in behalf of his ward, filed exceptions to Stanley's account, in which he objected to the allowance of these credits. The probate court sustained the objection to the credit for the note and disallowed it entirely, and sustained the other objection so far as to allow on the claim for extra services, etc., only the sum of $ 50. From the order of the probate court sustaining these exceptions to and restating his accounts, Stanley appealed to the circuit court, where, on a trial by the court, the exceptions made in the probate court were both sustained in full and a judgment accordingly was rendered against Stanley from which he has appealed. The other material facts are stated in the opinion.

Affirm.

W. F. Slemmons, for appellant.

1. The case should have been transferred to the equity docket. 38 Ark. 482.

2. This case falls within the principle of Waldrip, Gd'n., v. Tully, 48 Ark. 297. Stanley acted for the best interest of the minor, and under the peculiar circumstances of the case the court should have confirmed the sale.

3. Stanley could not wait to comply with sec. 3509-11 Mans. Dig., for by that time the property would have been worthless, and no sale could have been made, to the minor's great loss.

4. It was error not to allow appellant any commissions whatever on his final account. Sec. 3536 Mansf. Dig. It was also unjust not to allow him for money paid for attorney's fees. Id. The failure to itemize the claim cannot justify the court in refusing to allow him what was just and reasonable.

W. S. McCain and Wells & Williamson, for appellee.

1. The claim of $ 100 for commissions, etc., was too indefinite, and no proof was introduced to show that he was entitled to it, or that no previous allowance had been made him. There was no evidence that he had ever paid any attorney's fees. The statute (sec. 3536) allows just and reasonable compensation, but there must be evidence to base an allowance upon.

2. A sale of fixtures by a guardian without an order of court, is a nullity. And by taking back the note from his successor, and accepting new notes with security, payable to his wife, he has elected to treat the note as his own, and should be charged with the amount.

OPINION

COCKRILL, C. J.

As to the item of the Walton note, the appellant is not in position to complain of the judgment of the circuit...