State ex rel. Little v. Parsons
| Citation | 47 N.E. 17,147 Ind. 579 |
| Decision Date | 13 May 1897 |
| Docket Number | 18,083 |
| Parties | State, ex rel. Little, v. Parsons et al |
| Court | Supreme Court of Indiana |
From the Hamilton Circuit Court.
Reversed.
J. F Neal and S.D. Stuart, for appellant.
George Shirts, I. A. Kilbourne, T. J. Kane and R. K. Kane, for appellees.
This action was brought by the relator on two bonds given by one Beeson to secure the faithful performance of his duties as guardian of the relatrix. One bond was executed in 1873 by said guardian with the appellee, Harbaugh, as surety, and the other in 1874 with appellee, Burns, as surety. Said Beeson died in January, 1892, and appellee, Nagle, was duly appointed administrator of said estate. It is also sought to set aside a conveyance of real estate made by the guardian Beeson, in his lifetime, to the appellee, Parsons, as fraudulent, and subject the same to the payment of the debts of said decedent Beeson.
In 1877 Beeson filed his final report as such guardian, and resigned. After his resignation he paid over to his successor as such guardian the balance in his hands as shown in said report. It is alleged as one of the breaches of said bonds that Beeson received during said guardianship $ 976.00 for which he did not account in said report, or in any other manner, but fraudulently converted the same to his own use. For all that appears from the paragraphs of complaint upon that bond said final report was never approved, nor otherwise acted upon by the court.
The separate demurrer of each appellee was sustained to the complaint, and judgment was rendered in favor of appellees upon demurrer.
The only objection urged to the complaint by appellees, Harbaugh and Burns, who were the sureties on said bonds, is that the action on said bonds is barred by the statute of limitations. A guardian's final settlement made by him with the ward, and approved by the court after the ward becomes twenty-one years of age, or if a female, after she marries a man of that age, cannot be set aside, modified, or corrected, after the expiration of three years from the date of its approval; nor can it be set aside in an action brought within said three years except for fraud or mistake. Candy, Admr., v. Hanmore, 76 Ind. 125, 129, and cases cited; Horton v. Hastings, 128 Ind. 103, 27 N.E. 338, and cases cited. The approval of such final settlement and the discharge of the guardian would preclude the bringing of an action against the guardian on his bond, concerning any matter embraced in such settlement, so long as it remained in force. Horton v. Hastings, supra; Candy, Admr., v. Hanmore, supra.
The final report made by said guardian, in 1877, when he resigned and paid over the balance in his hands to his successor, even if approved by the court, was only a partial settlement, and was not a final settlement within the contemplation of the statute. State, ex rel., v. Peckham, 136 Ind. 198, 36 N.E. 28, and cases cited. Such partial settlement when approved by the court cannot be attacked collaterally, but is binding as to all matters properly embraced therein and adjudicated until set aside, corrected, or modified in some direct proceeding brought for that purpose. State, ex rel., v. Peckham, supra; Parsons v. Milford, 67 Ind. 489; Lang v. State, 67 Ind. 577; Wainwright v. Smith, 106 Ind. 239, 6 N.E. 333; Naugle v. State, ex rel., 101 Ind. 284; Taylor v. Calvert, 138 Ind. 67, 37 N.E. 531, and cases cited.
An action on a guardian or administrator's bond, or against such guardian or administrator personally, and to set aside a final or partial settlement may be joined if brought in the court having control over such settlements. State, ex rel., v. Peckham, supra.
As the bonds in suit were given, and the breach thereof alleged occurred prior to the enactment of the act concerning civil procedure in 1881, the same are governed by the fifth clause of section 211, 2 R. S. 1852, p. 76, section 211, 2 Davis' R. S. 1876, p. 124, which provides that actions upon contracts in writing * * * must be brought within twenty years after the cause of action has accrued.
The alleged breach of said bonds occurred in April, 1877, and the right of action thereon accrued at once, and the statute began to run. Peelle v. State, ex rel., 118 Ind. 512, 514, 21 N.E. 288, and cases cited. This action was commenced March 5, 1894, which was within twenty years after the cause of action accrued. It is true that in Jones v. Jones, 91 Ind. 378, and in Lambert v. Billheimer, 125 Ind. 519, 25 N.E. 451, it was held that the right of a ward to maintain an action against his guardian for a failure to account for money due the ward is barred in six years from the time the ward becomes of age, but in those cases the action, as the records show, was not on the bond or other contract in writing, but on account for money had and received. It was correctly held therefore in said cases that they were governed by the six-year statute of limitations.
We are also of the opinion that even if sufficient time had run to bar the action, that the allegations concerning the concealment of the cause of action were sufficient to bring the case within the provision of section 301, Burns' R. S. 1894 (300, R. S. 1881). If the allegation concerning the concealment, circumstances of discovery and time when made was not sufficiently certain and definite, the remedy was by a motion to make more specific.
However, the statute of limitations is a defense, and it was not necessary to anticipate and attempt to avoid such defense in the complaint. When any statute of limitations is pleaded as a defense, if the facts bring the case within any of the exceptions to the statute, they may be set up in the reply. This is the proper practice.
Section 254, Burns' R. S. 1894 (Acts 1889, p. 264), provides " That whenever any public officer or other person is required by the laws of this State to give bond for the performance of his duties, and more than one bond is given by the same officer or person for the performance of such duties, either during the same period of time or for successive periods of time, any person entitled to sue upon either of said bonds may bring a joint suit upon all or any number of said bonds, and in such action the liability of all the respective sureties thereon shall be...
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