State ex rel. Dorman v. Fitch
| Decision Date | 02 March 1888 |
| Citation | 113 Ind. 478,16 N.E. 396 |
| Parties | State ex rel. Dorman v. Fitch et al. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, Dearborn county; William H. Bainbridge, Judge.
Action upon a guardian's bond, brought by the state of Indiana ex rel. Frank R. Dorman against George B. Fitch, principal, and De Witt C. Fitch and Isaac Hayes, sureties. Judgment for defendant upon demurrer to the complaint, and plaintiff appeals.N. S. Givan, for appellant. Chas. F. Hayes, for appellees.
On the 30th day of December, 1881, George B. Fitch, one of the appellees, was, by the Dearborn circuit court, appointed guardian of one Omer F. Hayes, an habitual drunkard, and accordingly executed a bond as such guardian, with De Witt C. Fitch and Isaac Hayes as his sureties, conditioned in the usual form. He immediately entered upon the duties of the trust thus imposed upon him, and took possession of the property, both real and personal, which belonged to his ward. Afterwards, at the request of the said George B. Fitch, as such guardian, Frank R. Dorman delivered to the said Omer F. Hayes dry goods and clothing, for the use of the latter and his family, amounting in value to the sum of $93.55. These dry goods and this clothing were necessary for the comfort and support of the ward, Hayes, and his family, and were so used by them. In his reports to the Dearborn circuit court in regard to the condition of the estate of his ward in his hands, the said George B. Fitch reported the claim of Dorman, for goods so furnished by him, as a just and valid claim against the estate. But he (Fitch) never paid the claim, and it still remains unpaid. On the 17th day of October, 1885, Fitch tendered his resignation as guardian, and it was accepted, and he was discharged. Dorman thereupon commenced this action, in the name of the state, on his own relation, against Fitch and his sureties on his bond as such guardian, alleging as breaches- First, that the said Fitch had failed to make and file an inventory of the property which came into his hands as and while he was guardian. Second, that he had failed and neglected to rent the real-estate belonging to his late ward, and to collect and receive any rent for the same, although the rental value of such real estate was $350 per year; that, by reason of such failure and neglect, such rents had been lost to the estate of such ward. Third, that he had failed to use due diligence in the collection of claims due the estate of his said late ward, and that such claims were thereby lost to the estate. Fourth, that he had suffered the property of his said late ward to go to waste, and to become valueless or lost to his estate. Fifth, that he had failed and refused to pay his (the relator's) claim, although he had paid other claims against him as such guardian. Sixth, that he knowingly allowed persons to cut down timber trees growing on his late ward's lands, and to sell the same, to the value of $300, thereby permitting waste on such lands while they were in his possession as such guardian. The defendants demurred to the complaint, and their demurrer being sustained, and the relator declining to plead further, they obtained final judgment upon demurrer.
The demurrer is not in the record, and a memorandum, made by the clerk below, informs us that it is not on file with the other papers in the cause. The point is made on behalf of the appellees that, in the absence of the demurrer from the record, this court cannot consider any question which may have been presented by it, but must assume that the demurrer was rightly sustained. As deducible from our decided cases, the following rules of procedure are recognized in this court: Where a demurrer was filed to a pleading below, and was overruled, but is not in the record here, it will be presumed that the demurrer was so overruled, either on account of some defect of its own, or because some objection was thereby presented to the pleading to which it was not liable; but that where a demurrer which is not in the record was sustained, and there are no other defects in the record to interfere with such a proceeding, this court will consider the sufficiency of the pleading to which the demurrer was addressed, and inquire whether it was substantially defective in any respect, and decide according to the conclusion which may in this way be reached. This distinction between cases in which demurrers have been overruled, and those where demurrers have been sustained, may not have been carefully observed in all the cases having some relation to the subject in question, but it is one recognized by some of our best-considered cases, and is a distinction we consider well taken, and consequently reaffirm. Crowell v. City of Peru, 41 Ind. 308;Comer v. Himes, 49 Ind. 482;Jessup v. Trout, 77 Ind. 194;Long v. Town of Brookston, 79 Ind. 183;Shackman v. Little, 87 Ind. 181;Hammon v. Sexton, 69 Ind. 37.
It is impliedly admitted in argument that the demurrer presented two, and only two, objections to the complaint: First, that, upon the facts averred, Dorman was not a proper relator in the action; second, that the facts were not sufficient to constitute a cause of action. Section 2527, Rev. St. 1881, declares that “any bond given by any guardian may be put in suit by any person entitled to the estate, and such suit shall be governed by the law regulating suits on the bonds of executors and administrators.” It is claimed that only three persons can become entitled to the estate of the ward under the provisions of this section: First, the ward, on his arriving at full age, or upon the removal of his disabilities; second, the legal representative of the ward; third, the successor of the guardian in the matter of the guardianship; and that hence a creditor of the ward's estate cannot become a relator in the suit upon his guardian's bond, because, as such creditor, he does not...
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