State v. Richardson

• Decision Date: 19 March 1888
• Citation: 29 Mo.App. 595
• Parties: THE STATE OF MISSOURI to the use of JAMES W. PILES, Respondent, v. DANIEL RICHARDSON, Appellant.
• Court: Kansas Court of Appeals

29 Mo.App. 595

THE STATE OF MISSOURI to the use of JAMES W. PILES, Respondent, v. DANIEL RICHARDSON, Appellant.

Court of Appeals of Missouri, Kansas City.

March 19, 1888

APPEAL from Chariton Circuit Court, HON. G. D. BURGESS, Judge.

Affirmed, upon condition of remittitur of part of interest.

The case is stated in the opinion.

CRAWLEY & SON, for the appellant.

I. The paper purporting to be a certified copy of an " annual exhibit," should have been excluded. (a ) There is no evidence that the original was ever filed or passed upon by the probate court; while the paper itself bears no indicia of its purported character, save a mere certificate that it is " taken from the records." There must be something to show how and when and by what authority the original came to be among those records, before a copy is competent under the statute. Rev Stat., 1879, sec. 2321; Dillon's Adm'r v Bates, 39 Mo. 302. (b ) Defendant's undertaking expressly relates to the curator's dealing with an estate derived from the ward's mother, Mary Jane Piles; while this " exhibit" relates to an estate derived from James S. Piles, the father. There is nothing in evidence bringing the " exhibit" within the terms of the surety's contract, or the allegations of the petition.

II. The demurrer to the evidence should have been sustained. ( a ) There was no proof that Bradley ever received or took charge of relator's estate, under the bond. This averment of the petition was material. State to use v Martin, 18 Mo.App. 469. (b ) Giving the paper read in evidence full weight as a " " settlement," and taking for granted it was regularly approved by the proper court, still, in the absence of further proof, the law presumes the balance then on hand has since been legally accounted for. " It is presumed, until the contrary is proved, that every man obeys the mandates of the law, and performs all official and social duties." 1 Greenleaf Evid. [13 Ed.] p. 50, sec. 40; Lenox v. Harrison, 88 Mo. 491.

III. The finding of $1,042.50 damages in this case is unwarranted upon any view of the evidence. (a ) The statute does not fix a rate of interest, or measure of damages; and it was error to charge ten per cent., with annual rests, as a mere matter of course. Rev. Stat. 1879, sec. 2599; Gen. Stat., 1865, p. 471, sec. 41; Madden v. Madden, 27 Mo. 544; Cruce v. Cruce, 81 Mo. 676. (b ) Piles was twenty-six at the date of the trial; and even where ten per cent. compound interest is proper to be charged, that rate ceases as soon as the ward attains his majority. The ward is then a creditor sui juris, and the demand stands upon a footing with any other debt about which there is no contract in regard to interest. Tanner v. Skinner, 11 Bush [Ky.] 120; Armstrong v. Walkup, 12 Gratt. [Va.] 608; Guillet v. Jure, 15 La.Ann. 417. This doctrine is expressly asserted in our own state. Payne v. King, 38 Mo. 508. (c ) A curator is entitled to an allowance in the nature of commissions, in every case where he is charged with compound interest. This is even held to be true by some courts where there has been gross mismanagement or a misappropriation of the estate. Vanderhayden v. Vanderhayden, 2 Paige [N. Y. Ch.] 288; Rapalji v. Norsworthy, 1 Sandf. [N. Y. Ch.] 399; Baker v. Laffitte, 4 Rich. [S. C. Eq.] 392; Frost v. Winston, 32 Mo. 489. And sureties are entitled to the same allowance when sued on his bond. Sanders v. Forgassan, 59 Tenn. 246. (d ) Where the evidence does not sustain the finding and the attention of the trial court is called to it in the motion for a new trial the judgment should be reversed, whether instructions have been asked or not. Robbins v. Phillips, 68 Mo. 100; Moore v. Hutchinson, 69 Mo. 429.

H. LANDER and L. D. ISBELL, for the respondent.

I. Appellant's abstract and brief fail to set forth the record as required by rules of court; and the errors assigned, if any, are not distinctly alleged. There is no abstract or abridgment of the record within the meaning of rule 15, of this court.

II. The points made against the certified copy of annual settlement of curator Bradley as evidence, are not well taken. Such settlement as against the curator is prima-facie evidence. State to use v. Roeper, 82 Mo. 62. This copy comes from the " probate court of Chariton county; " it is " subscribed and sworn to" by W. J. Bradley, " guardian and curator; " the name of each ward appears on the face of the paper, as " Noah Piles, Jas. W. Piles, Martha J. Piles." It is just the kind of document required by the guardian act. Rev. Stat., sec. 2600. It is certified to as being " a true and correct copy from the records of said court." It comes from the proper custody. A certified copy of any record or public paper, by the officer intrusted with the custody, is evidence. Childers v. Cutter, 16 Mo. 44. Every presumption is in favor of its being the proper settlement required by the statute. It could not be a record of the court without the proper action of the court making it such.

III. The point made, that there is a variance between the petition and the evidence with respect to the name of the parent of the wards, is not well taken. The evidence shows that the wards were the children of Mary J. Piles and James S. Piles. Whether the children acquired the estate from the father, or mother, or from both, or from neither, is not a material question in the case. And even if it were material, appellant should have availed himself of the objection by the proper affidavit at the trial, under Revised Statutes, section 3565.

IV. The points made by appellant, that there is no evidence that the curator ever took charge of the estate, or that he has not paid the funds in his hands, are not well taken. His own sworn account, rendered as his third annual exhibit, is certainly prima-facie evidence that he took charge of the amount of the estate charged against himself at that time. And after thus showing himself liable for the money, it is a new rule of evidence that casts the burden on plaintiff to show that the defendant has not paid the debt.

V. The bond of the guardian is good, though not approved by the probate court. State v. Farmer, 54 Mo. 439. The recital of appointment in a guardian's bond is a solemn admission of appointment, and estops the obligor and sureties. State ex rel. v. Williams, 77 Mo. 464; Dayton v. Johnson, 69 N.Y. 419; Fiske v. Whipple, 39 N.Y. 394; Bruce v. United States, 17 How. (U. S.) 437.

VI. Whether ten per cent. compound interest should have been charged against the defaulting curator or his sureties, was a question to be determined by the trial court on all the facts presented. In re Davis, 62 Mo. 454; Williams v. Pettigrew, 62 Mo. 460.

VII. Both the petition and the affidavit for attachment show that Bradley, the guardian and curator, became a non-resident of the state. This fact is not controverted by plea in abatement or otherwise, but stands admitted. A curator who leaves the state, taking with him his ward's money; makes no settlement or even attempts to account for anything, is certainly guilty of the grossest misconduct and violation of his trust.

CRAWLEY & SON, on motion for rehearing.

I. The decision in this case is in conflict with the controlling decision of the Supreme Court in Renfro's Adm'r v. Price, 17 Mo. 431.

II. Aside from the annual exhibit made in 1876, there is no evidence in the record to warrant an affirmance of the judgment below. The onus is not on the surety to show what afterwards became of the balance then shown to be due to the ward. Renfro's Adm'r v. Price, 17 Mo. 431.

ELLISON J.

At the conclusion of plaintiff's case defendant offered an instruction in the nature of a demurrer, which being refused by the court, defendant stood thereon and refused to introduce any testimony. The action was instituted on a guardian's bond against W. J. Bradley as principal, and defendant and one other as sureties. The suit was dismissed as to Bradley and the other surety, and left standing against defendant alone. The evidence for plaintiff consisted of the bond, Bradley's third annual settlement showing a balance due plaintiff, and oral evidence, to the effect that plaintiff, at the institution of the suit, was twenty-six years old, and was the son of James S. and Mary J. Piles, they being dead.

I. Defendant objected to the introduction of a certified copy of the annual settlement, for the reason that it did not appear that it had ever been filed or passed upon by the probate court. It is certified by the judge of probate as being " a true and correct copy from the records of said court." If it is a copy from the records of the probate court, it is certainly proper to assume, nothing appearing to the contrary, that it was filed therein. Indeed, I am unable to see how a settlement could become a part of the records of the court without being filed. Nothing on the back of a paper is not, properly speaking, the filing, but merely the evidence thereof. But it is said that the settlement should not have been received in evidence for the reason that it did not appear to have been passed upon by the court. These settlements are prima-facie evidence against the guardian and his sureties, and the objection made involves the question whether they are evidence from the fact of their being approved by the court, or from the fact that they are solemn admissions made by the guardian over his signature and under oath. I think it is undoubtedly upon the latter ground that they receive their probative force and upon which they are allowed in evidence. It has long been held in this state that these annual settlements are mere exhibits of the state of account and that their approvals are not judgments. And so it was directly decided in Kidd v. Guinbar, 63 Mo....