State ex rel. Dunham v. Roche

• Decision Date: 20 November 1883
• Docket Number: 10,741
• Parties: The State, ex rel. Dunham, v. Roche, Administrator, et al
• Court: Indiana Supreme Court

91 Ind. 406

The State, ex rel. Dunham, v. Roche, Administrator, et al

No. 10,741

Supreme Court of Indiana

November 20, 1883

From the Huntington Circuit Court.

Judgment reversed, at the appellee's costs, with instructions to sustain the demurrer to the second paragraph of Hedekin's answer and for further proceedings in accordance with this opinion.

W. H Trammel and T. L. Lucas, for appellant.

S. E Sinclair and H. C. Hanna, for appellees.

OPINION

Hammond J.

Action by the State of Indiana, on the relation of Cynthia E. Dunham, against the administrator of Elam A. Mahon, deceased, Samuel T. Morgan and Thomas B. Hedekin. The suit is upon a bond alleged to have been executed by Mahon, as guardian of the relatrix, and by Morgan and Hedekin, as sureties, in proceedings had upon petition for the sale of the relatrix's real estate. The complaint charges that the guardian, under the proper order of court, sold the real estate for $ 900, and converted the money derived therefrom to his own use.

Upon the issues made there was a trial by jury resulting in a verdict for the appellees, and over the appellant's motion for a new trial, judgment was rendered on the verdict.

The appellant's demurrer, alleging that the facts stated were not sufficient to constitute a defence to the appellant's complaint, was overruled to the second paragraph of Hedekin's answer. The ruling was excepted to by the appellant, and is assigned as error in this court.

The following is a copy of the pleading complained of:

"For a second and further answer to plaintiff's complaint, the defendant Thomas B. Hedekin says that Elam A. Mahon, deceased, filed his report as guardian of said relatrix on the 10th day of February, 1872, showing a balance in his hands of $ 178.41 belonging to his ward; that it was the last report he filed before his death, and that it was approved by the Honorable Judge of the Huntington Circuit Court; that from the time of the filing of the said last report to the time of his death there came into his hands the additional sum realized as the proceeds of the sale of the real estate of his ward, described in plaintiff's complaint.

"That Elam A., as the guardian of said relatrix, was indebted to Ruth Bryan for the tuition and board of his said ward; that on the 28th day of December, 1872, said Ruth Bryan filed her complaint in said Huntington Circuit Court, in which she demanded $ 1,000 from said Elam A. Mahon, for the tuition and board of Lillie Mahon, whose proper name was Cynthia E. Dunham, and the same person as the relatrix; that the same was due said Ruth Bryan from the estate of said ward, but there being no money in said Elam A.'s hands belonging to said ward at the time, he, the said Elam A., on the 10th day of June, 1873, confessed a judgment against himself in favor of said Ruth Bryan for $ 1,068, which judgment was assigned by said Ruth Bryan to Samuel R. Alden for a valuable consideration before the bringing of this action; that the same remained in full force up to the time of his death, and became a lien upon his estate, which was ample to pay said judgment; that after his death Thomas Roche, his administrator, paid on said judgment, on the 6th day of August, 1877, the sum of $ 200, and on the 3d day of May, 1879, the further sum of $ 400; that on the 26th day of July, 1878, said administrator paid to Samuel Morgan, who was then the guardian of said relatrix, the sum of $ 35, and on the 26th day of April, 1879, the further sum of $ 275; that said several sums of money paid for the benefit of said relatrix by said administrator, and said judgment confessed by said Elam A. Mahon, deceased, for the benefit of said ward, amount to more than the money in his hands belonging to his said ward, including the amount realized from the sale of the real estate by said Elam, described in plaintiff's complaint. Wherefore he demands judgment for his costs in this action."

Section 6 of the guardians' act (section...