Title Guaranty & Sur. Co. v. Foster

• Citation: 203 P. 321,84 Okla. 291,1920 OK 391
• Parties: TITLE GUARANTY & SURETY CO. v. FOSTER ET AL.
• Decision Date: 28 December 1920
• Court: Supreme Court of Oklahoma

1920 OK 391

203 P. 321

84 Okla. 291

TITLE GUARANTY & SURETY CO. v. FOSTER ET AL.

Supreme Court of Oklahoma

Decided: December 28, 1920

Syllabus by the Court.

¶0 A person who describes himself as guardian of another will be taken to sue in his representative, and not in his personal, capacity, where the allegations of the petition, taken as a whole, show clearly that it was his intent to sue as guardian.

Under the authority of section 4683, Rev. Laws 1910, authorizing an executor, administrator, guardian * * * to bring an action without joining the person for whose benefit it is prosecuted, the guardian has authority to commence and prosecute in his own name as such, without joining his ward, an action to recover assets of and debts and liabilities due to the estate of his ward.

In the absence of statutory authority, the county courts have no jurisdiction to release or consent to the release of the sureties on the guardian's bond. Section 6580, Rev. Laws 1910, in authorizing the county court to release the existing sureties on a guardian's bond from further liabilities, conditions the release and discharge of the existing sureties upon the execution of a new bond to be given by the guardian as a substitute for the discharged bond.

Where the county court's jurisdiction is properly invoked on a petition to discharge sureties on a guardian's bond, the amount of the substituted bond and sufficiency of the sureties are questions for the county court, and the judgment of the county court rendered in such matter in the exercise of its jurisdiction is, in the absence of fraud, binding and conclusive unless reversed on appeal.

The order of the county court releasing sureties on the $35,000 guardian bond and accepting in lieu thereof a $1,000 bond coupled with the order that the guardian shall not use or in any wise control any of the moneys, funds, or other property belonging to the ward, except upon the authority of the court expressly given, and ordering all funds of the estate to be deposited in a certain bank, with directions that none of the funds so deposited shall be paid out except upon express order of the court, is void because the court has no jurisdiction to substitute the bank and itself for the guardian bond required by the statute.

If the county court is advised that the guardian has the ward's funds in a failing or insolvent institution, it may direct him to withdraw them and deposit them in some solvent bank, but the county court has no authority to designate the particular bank as the depositary. The guardian and his sureties are financially responsible for the ward's funds and have a right to select the depositary at their risk.

While a judgment rendered in the exercise of jurisdiction cannot be impeached collaterally, the three jurisdictional elements necessary to sustain a judgment may be inquired into by an inspection of the judgment roll on a collateral attack. The three jurisdictional elements entering into the validity of every judgment are: (1) Jurisdiction of the parties; (2) jurisdiction of the subject-matter; and (3) judicial power to render the particular judgment, which means jurisdiction of the particular matter which the judgment professes to decide. If either of these three elements is shown by the judgment roll to be missing, the judgment is void, and may be successfully attacked collaterally.

The fact that a guardian makes a single bond for the benefit of more than one ward does not vitiate it, even though it expresses a joint obligation as to the wards, while the statute requires it to be several.

If the obligees of a guardian's bond are joint, they must all be parties to the action on the bond, either as plaintiffs or defendants, as required by section 4692, Rev. Laws 1910.

The reason of the rule requiring joint obligees to be parties is that the cause of action is one and entire.

In case of ambiguity or doubtful construction, a bond should be construed in the light of the circumstances surrounding the execution thereof, the object to be accomplished, the situation of the parties, and the relations existing between them. The nature of the duty of the obligor and the character of the obligees must also be regarded as explanatory of the intent.

The guardian executed a general guardian bond with sureties, naming therein five wards as obligees. The penalty named in the bond is $3,300. There is no provision in the bond reciting that the maximum penalty may be recovered by each of the wards. Held, that $3,300 is the maximum penalty, and that no more than that amount as penalty can be recovered against the sureties by the obligees, either separately or jointly.

The guardian of five minors executed with a surety one bond reciting therein the five minors as obligees. Held, the obligees are several, and not joint, and the bond is, in effect, the joint and several obligation of the principal and surety to each of the obligees in the sum of one-fifth of the penalty named in the bond. Held, that one of the obligees can maintain an action against the principal and surety on the bond without making the other obligees parties.

A bond given to two or more obligees may be given to them jointly or severally, but not jointly and severally, unless clearly and unmistakably so expressed in the bond. The general rule is that, if the interest of the obligees is joint, the bond will be deemed to have been given to them jointly; if their interests are several, then severally.

A general guardian executed a bond with surety conditioned to be void if the guardian leased the land of his ward with fidelity and well and faithfully accounted for all moneys, rents, profits, and other things of value received by him under such lease. The guardian also had a general guardian bond. In an action against the guardian and his sureties on his general guardian bond and his surety on the lease bond, the burden of proof was on the surety in the lease bond to prove that no part of the money received by the guardian under the lease constituted a part of the guardian's misappropriation and shortage in his accounts.

The filing of a cross-petition in error attached to a transcript or case-made previously filed in the Supreme Court to reverse or modify the judgment or final order of the trial court is the commencement of a proceeding in error in the Supreme Court at the instance of the party filing the cross-petition in error. Such constitutes a cross-appeal, and such cross-appeal will not be dismissed because the cross-plaintiff in error did not prepare, serve, and have settled a case-made and file same with his cross-petition in error; it appearing that the cross-petitioner filed a motion for a new trial and gave notice of appeal, as provided by section 5238, Rev. Laws 1910, as amended by act approved March 23, 1917 (Laws 1917, c. 219).

An infant is not bound by a stipulation of his guardian waiving a substantial legal right; it appearing that the guardian's stipulation was evidently founded on a mistake of law.

On March 11, 1914, the defendant in error and cross-plaintiff in error, as plaintiff below, commenced this action against Lewis Bible and the other defendants as his sureties on his guardian bonds. On July 3, 1903, Lewis Bible was appointed by the United States Court for the Northern District of the Indian Territory guardian of the estate of Everett Bible, Vera Bible, Ary Bible, James Phillip Bible, and Chris Bible, minors. On that same day he executed a general guardian bond on behalf of all the minors in the penal sum of $3,300 with the American Surety Company of New York, one of the defendants, as surety thereon. Thereafter the guardianship proceedings, in so far as they pertained to the estate of Everett Bible, were transferred to the United States court sitting at Bartlesville, and upon the admission of the state passed into the county court of Washington county, Okla. Before said proceedings were removed to Bartlesville, Lewis Bible, as guardian of Everett Bible, on November 9, 1903, executed a special lease bond in the penal sum of $500 with the American Surety Company of New York as surety thereon, conditioned that, if the guardian should conduct the leasing of the land of said ward with fidelity and well and faithfully account for and turn over all moneys, rents, profits, and other things of value received by him under such lease, the bond should become null and void. On the 8th day of November, 1907, Lewis Bible as guardian of Everett Bible, executed a general guardian bond in the penal sum of $35,000 with the defendant the Title Guaranty & Surety Company as surety. Thereafter the Title Guaranty & Surety Company, being dissatisfied with the risk assumed, filed a petition in the county court of Washington county in said guardianship proceedings, praying that the guardian be ordered to execute a good and sufficient bond, and that petitioner be exonerated from further liability.

Without reviewing the procedure and deciding the regularity thereof leading up to the final judgment of the county court releasing it as surety, suffice it to say that on the trial of this case in the district court it was agreed that at the time the order of release was entered by the county court on August 26, 1908, the guardian was not short in his accounts, and there was no accrued liability on the bond. On August 26 the county court, after giving notice to the guardian, entered an order reciting that, the guardian "having heretofore filed his personal bond in lieu of the bond made by the Title Guaranty & Surety Company and said bond being sufficient," it is ordered that said surety company be, and is hereby, released from further liability on the bond, and that said bond is hereby canceled. As a part of the order releasing the surety company, the court entered the following judgment:

"It is further ordered by the court herein that the above-named guardian shall not use or in any wise control any of the moneys, funds, or other...