Title Guar. & Sur. Co. v. Slinker
| Decision Date | 03 December 1912 |
| Citation | 128 P. 696,35 Okla. 128,1912 OK 821 |
| Parties | TITLE GUARANTY & SURETY CO. v. SLINKER. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
Assignments of error presented by counsel in their brief or oral argument, if unsupported by authority, will not be noticed by the court, unless it is apparent without further research that they are well taken.
A motion for a continuance based upon the absence of a witness is properly overruled where the affidavit supporting the motion shows that the facts it is alleged the witness would prove if present would be incompetent for the purpose offered.
A guardian will not be permitted to testify in a manner to impeach the final settlement of his guardianship accounts regularly made by the county court.
Sureties on a guardian's bond are, in the absence of fraud concluded by the decree of the county court, duly entered on a hearing on an accounting, or final settlement, as to the amount of the principal's liability, although the sureties are not parties to the accounting.
Where a pleading styled an answer contains an allegation to the effect that the petition does not state facts sufficient to constitute a cause of action, coupled with allegations of facts constituting a defense, and thereafter a general denial by way of a reply is filed thereto, it was not error for the court below to disregard the allegations attacking the petition and require the parties to proceed to trial, when the case was reached for that purpose upon the issues of fact joined by the petition, answer, and reply.
It is within the province of the county court to require guardians to settle the accounts of their wards, even after the letters of guardianship have been revoked.
A minor by his legal guardian may maintain an action on the official bond of a former guardian, although the bond, which was executed prior to statehood, was made payable to the United States of America.
Section 2012, Comp. Laws 1909, which provides that "no judge of any court of record shall set in any cause or proceeding in which he may be interested, or in the result of which he may be interested," does not preclude a county judge from acting in the matter of the settlement of a guardian's accounts whose letters of guardianship have been revoked because he acted as attorney for the guardian in the matter of his appointment.
Error from District Court, Bryan County; Jas. R. Armstrong, Judge.
Action by William Raymond Slinker, a minor, by his legal guardian A. Neely, against the Title Guaranty & Surety Company. Judgment for plaintiff, and defendant brings error. Affirmed.
Edward C. Griesel, of Muskogee, and Kyle & Newman, of Durant, for plaintiff in error.
Chas E. McPherren, Chas. P. Abbott, and Chas. B. Cochran, all of Durant, for defendant in error.
This was an action on the official bond of J. I. Slinker, guardian of William Raymond Slinker, a minor, upon which the Title Guaranty & Surety Company was surety. No service of summons was had upon the principal, for the reason that he could not be found in the county where the action was commenced, and upon trial to a jury there was a judgment directed against the Title Guaranty & Surety Company, to reverse which this proceeding in error was commenced.
Counsel for plaintiff in error present quite a number of contentions in their brief which are entirely unsupported by any authority, and, as it is not apparent to the court that any of them are well taken, we will not notice that class of assignments further, but will confine ourselves to propositions upon which authority is cited pro and con.
The first assignment of the latter class is to the effect that the court erred in overruling the motion for a continuance filed by the plaintiff in error. This motion was supported by affidavit, and was based upon the absence of J. I. Slinker, who, it seems, had departed from the state, and, as the affidavit states, was a resident of Ft. Worth, Tex.
The affidavit supporting the motion was to the effect that the evidence of Slinker would tend to show that he did not owe the estate of his ward the sum found to be due him by the county court in a settlement had therein, after citation upon the guardian demanding him to make a settlement of his ward's affairs after he had been removed from office. Such evidence is incompetent, and could not have been introduced if the witness had been present. It seems to be well settled that, under statutes similar to ours, a guardian will not be permitted to testify in a manner to impeach the final settlement of his guardianship accounts regularly made by the county court. Graff v. Mesmer, 52 Cal. 636; Brodrib v. Brodrib et al., 56 Cal. 563; Deegan v. Deegan et al., 22 Nev. 185, 37 P. 360, 58 Am. St. Rep. 742; In re Wells' Estate and Guardianship, 140 Cal. 349, 73 P. 1065.
This, in effect, was held by this court in a recent case ( Southern Surety Co. v. Burney et al., 126 P. 748, not yet officially reported), wherein it was held that: "Sureties on a guardian's bond are, in the absence of fraud, concluded by the decree of the county court, duly entered on a hearing on an accounting, or final settlement, as to the amount of the principal's liability, although the sureties are not parties to the accounting." On the above proposition, which is also directly involved in the case at bar, the foregoing case is decisive.
It seems that the pleading styled an answer filed by the defendant, besides containing facts constituting a defense contained an allegation to the effect that the petition did not state facts sufficient to constitute a cause of action. After the answer was filed, plaintiff filed a general denial by way of reply. Thereafter counsel asked leave to argue separately the allegations of its answer, which amounted to a demurrer, which leave was denied by the court, which action constitutes another ground of error. There is no statutory authority for combining an allegation which amounts to a demurrer with facts constituting a defense. The answer in an action at law is for the purpose of stating defensive facts and a demurrer raises questions of law, and should be filed and disposed of before the answer is filed. In Ryndak v. Seawell, 13 Okl. 737, 76 P. 170, it was held: "Where a...
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