Title Guar. & Sur. Co. of Scranton, PA. v. Burton

• Court: Oklahoma Supreme Court
• Writing for the Court: KANE, J.
• Citation: Title Guar. & Sur. Co. of Scranton, PA. v. Burton, 170 P. 1170, 67 Okla. 320, 1918 OK 101 (Okla. 1918)
• Decision Date: 12 February 1918
• Docket Number: 8439.
• Parties: TITLE GUARANTY & SURETY CO. OF SCRANTON, PA., v. BURTON.

170 P. 1170

67 Okla. 320, 1918 OK 101

TITLE GUARANTY & SURETY CO. OF SCRANTON, PA., v. BURTON.

No. 8439.

Supreme Court of Oklahoma

February 12, 1918

Syllabus by the Court.

Where a guardian dies without an accounting and settlement of his affairs as guardian having been made in the county court, his former wards may maintain an action in the superior or district court against his personal representatives and the sureties on his bond as guardian for such accounting and settlement.

Where a guardian dies without an accounting and settlement of his affairs as guardian having been made in the county court such settlement and accounting can only be had in a court possessing the power and jurisdiction of a court of equity by proceeding against the executors and other necessary parties.

Where a statute of limitations excepts persons laboring under disabilities from its operation, without mentioning infants specifically, infants are within the saving clause of the statute, and the statute does not run against them during such disability, even where such infant has a guardian who might maintain the action in his or her name, provided the title or right of action is in the infant.

Record examined, and held that the judgment rendered is supported by sufficient evidence for the full amount thereof.

Error from Superior Court, Tulsa County; M. A. Breckinridge, Judge.

Action by Gladys Burton, a minor, by Maud F. Burton, her guardian and next friend, against the Title Guaranty & Surety Company of Scranton, Pa. Judgment for plaintiff, and defendant brings error. Affirmed.

Edward C. Griesel, of Muskogee, and Poe, Hindman & Lundy, of Tulsa for plaintiff in error.

D. B Crewson and E. G. Wilson, both of Tulsa, for defendant in error.

KANE J.

This was an action upon a guardian's bond, commenced by the defendant in error, by her guardian and next friend, plaintiff below, against the plaintiff in error, defendant below. Hereafter, for convenience, the parties will be designated "plaintiff" and "defendant," respectively, as they appeared in the trial court.

The bond sued upon was given by S. Burton; a former guardian of the plaintiff, since deceased, and was to idemnify her against any loss occasioned by the failure of said guardian to well and faithfully account for and turn over for the use of said minor ward all moneys, rents, profits, or other thing of value which he might receive from the leasing of a certain tract of land belonging to the ward for oil and gas purposes. The petition alleged that S. Burton, deceased, had received as bonus and royalty money accruing from said oil and gas lease the sum of $1,785.97, and died without accounting for any part of said sum to said minor or her estate. By way of defense the defendant pleaded, first, that after the death of the former guardian, his wife, Maud F. Burton, the mother and present guardian of Gladys Burton, filed a sworn report in the county court of Tulsa county, the county wherein the guardianship was then pending, setting forth the condition of the estate of said minor at the time of the death of S. Burton; that said report shows that after accounting for the receipts and expenditures made by S. Burton as guardian there was due said ward from said guardian the sum of $249, which sum Mrs. Burton asserted she was ready and willing to assume and pay at such time and in such manner as may be required by the probate court; that this report and the approval thereof by the county court constitute a valid final settlement of the account of said S. Burton as guardian by a court of competent jurisdiction, which order of approval, being unappealed from, became final and absolute, and therefore a bar to the present action. Upon trial to the court there was judgment for plaintiff, to reverse which this proceeding in error was commenced.

The principal grounds for reversal relied upon by counsel for defendant may be briefly stated as follows: (1) Inasmuch as the petition failed to state facts sufficient to show any final settlement of the account of S. Burton, as guardian, by a court of competent jurisdiction, it did not state a cause of action against the defendant; (2) the evidence adduced at the trial conclusively showing that the account of S. Burton as guardian had been satisfactorily settled subsequent to his death by a valid judgment of the county court, such judgment constitutes a bar to this action against the sureties upon his official bond; (3) the action was barred by section 6582, Rev. Laws Okl. 1910, which provides:

"No action can be maintained against the sureties on any bond given by a guardian, unless it be commenced within three years from the discharge or removal of the guardian; but if at the time of such discharge the person entitled to bring such action is under any legal disability to sue, the action may be commenced at any time within three years after such disability is removed."

The first proposition was...