U.S. Fidelity & Guar. Co. v. People ex rel. Miller

• Citation: 98 P. 828,44 Colo. 557
• Parties: UNITED STATES FIDELITY & GUARANTY CO. v. PEOPLE ex rel. MILLER.
• Decision Date: 21 December 1908
• Court: Colorado Supreme Court

98 P. 828

44 Colo. 557

UNITED STATES FIDELITY & GUARANTY CO. v. PEOPLE ex rel. MILLER.

Supreme Court of Colorado, En Banc.

December 21, 1908

Appeal from District Court, Custer County; M. S. Bailey, Judge.

Action by the People, on the relation of V. H. Miller, against the United States Fidelity & Guaranty Company. From a judgment for plaintiff, defendant appeals. Affirmed.

This action was brought by relator, Miller, against appellant, as surety upon an administrator's bond given by Malcolm G Wright, and also against said Wright, as principal in said bond. It was so brought under the statute whereby sureties upon such bonds are made liable for the failure of the principal to comply with law or with the covenants of the bond executed pursuant to law. Default was entered against Wright, and judgment was recovered against appellant as such surety. The same is now pending before this court for review.

The facts and circumstances, more in detail, may be stated as follows: Relator, Miller, who is an attorney at law, under employment by Wright, gave legal advice and otherwise assisted in the collection of claims and settlement of the estate. His bill for the services thus rendered was presented to the county court, and upon investigation was allowed, and judgment was entered thereon accordingly. The administrator refused to pay the same, although demand therefor was made upon him on two different occasions, and he left the state of Colorado without making such payment and without accounting to the court for the balance of moneys in his hands belonging to the estate, although he held sufficient funds to pay off all claims against the estate, including this one. The present action on the administrator's bond came on for trial June 13, 1902, upon the amended complaint and separate answer of defendant company thereto. A motion by said defendant to exclude all testimony, for the reason that the amended complaint failed to state a cause of action, was denied. The cause was then tried to the court, a jury being by stipulation expressly waived, and at its close the decision was taken under advisement. Thereafter application was made for leave to amend the amended complaint, and on or about July 16, 1902, a formal written motion for such leave strongly supported by affidavit, was presented to the judge at his request, and also a brief upon the same. Among other things in the affidavit mentioned, it appears that this amendment was prepared with the intention of filing the same early in the December term, 1901; but that by reason of certain occurrences therein narrated it was, by inadvertence not filed, or, if filed, was mislaid by the clerk, and the matter was overlooked until the close of the trial in June 1902. The court held this motion, together with its decision under advisement until the opening of the next term. It granted the motion on December 11, 1902, ordering that the allowance thereof be recorded as of June 13, 1902, the date of the trial. Counsel not being present, and the parties not being represented, the court, of its own motion, then continued the cause to the next regular term, June, 1903. On April 25, 1903, plaintiff served notice on defendant's counsel of the allowance of said motion and also of the setting of the cause for trial at the June term following. This notice also recites that a copy of the original application for leave to amend the complaint was served on defendant's counsel at the time of the presentation to the judge of the court of the motion, and the affidavit and brief in support thereof. On May 2d, following, plaintiff filed a second amended complaint containing the amendment so allowed, together with certain slight changes otherwise, which, in so far as the decision of the case is concerned, are immaterial. Defendant on June 9, 1903, moved to strike this amended complaint from the files upon several grounds, one of which was that the court had no power or authority to make the order granting permission to amend the same. This motion was dened. On the same day, June 9, 1903, the cause again came on for trial upon the second amended complaint and defendant company's amended answer thereto. Defendant again renewed its motion to exclude all testimony under the second amended complaint, which motion was overruled. It was then ordered by the court, without objection, that the evidence theretofore taken should stand as evidence in the cause, and the plaintiff proceeded with the introduction of some further testimony. Defendant introduced no testimony, but interposed a motion for judgment in its favor, basing the same upon the grounds that the second amended complaint did not state a cause of action, and that the evidence failed to show liability of defendant under the terms of the bond, or that the administrator had sufficient assets to pay relator's claim. This motion was denied, and judgment was entered for plaintiff.

The following provisions from Mills' Annotated Statutes are referred to in the opinion, viz.:

'Sec. 4780. All demands against the estate of any testator or intestate shall be divided into classes in manner following, to wit: First--All funeral and other expenses attending the last sickness shall compose the first class. Second--All expenses of proving the will and taking out letters testamentary or of administration and settlement of the estate, and the physician's bill in the last illness of the deceased, shall compose the second class. Third--Where any executor, administrator or guardian has received money, as such, his executor or administrator shall pay out of his estate the amount thus received and not accounted for, which shall compose the third class. Fourth--All other debts and demands of whatsoever kind, without regard to quality or dignity, which shall be exhibited within one year from the granting of letters, as aforesaid, shall compose the fourth class; provided, that wherever it may be necessary so to do, in order to preserve the estate, real or personal, for the benefit of the heirs, devisees and creditors, the executor or administrator may pay any taxes due thereon, to the state, or any city, county or town, and shall be allowed such payment in his account; and all demands now exhibited within one year, as aforesaid, shall be forever barred, unless such creditor shall find other estate of the deceased not inventoried or accounted for by the executor or administrator; in which case his claim shall be paid pro rata out of such subsequently discovered estate.'

'Sec. 4791. The county court shall class all demands allowed against any estate at the time of the allowance thereof, and such demands shall be paid in their order, commencing with the first class, and when the estate is insufficient to pay the whole of the demands, such demands in any one class shall be paid pro rata whether the same shall be due by judgment, writing obligatory, or otherwise, except in such cases as shall be herein excepted. * * *'

'Sec. 4795. Upon each and every settlement of the accounts of any executor or administrator, it shall be the duty of the court to ascertain the whole amount of moneys which shall have come into the hands of such executor or administrator, belonging to the estate of the deceased, and the whole amount of debts established against such estate, and if there be not sufficient to pay the whole of the debts, the moneys aforesaid, or such part thereof as the court may direct, shall be apportioned among the several creditors, pro rata, according to their several rights as established herein; and thereupon the court shall make an order directing such executor or administrator to pay out such moneys according to such apportionment, and the court, upon each and every settlement, shall proceed in like manner, until the whole debts be paid or the assets exhausted. * * *'

'Sec. 4807. All bonds which may at any time be given by any executor or administrator, either with or without the will annexed, or de bonis non, to collect, or public administrator, may be put in suit and prosecuted against all or any one or more of the obligors named therein, in the name of the people of the state of Colorado, for the use of any person or persons who may have been injured by reason of the neglect or improper conduct of any such executor or administrator as aforesaid, and such bond shall not became void on the recovery thereon, but may be sued upon, from time to time, until the whole penalty shall be recovered. * * *'

'Sec. 4808. If any executor or administrator shall fail to comply with the provisions of this chapter, or shall fail to comply with any or all of the covenants in his bond, an action may be forthwith instituted upon such bond, and the failure aforesaid shall be sufficient breach to authorize a recovery, in the same manner as though a devastavit had been previously established against such executor or administrator.'

Andrew W. Gillette, for appellant.

John A. Gordon and V. H. Miller, for appellee.

HELM, J. (after stating the facts as above).

The most important objection urged in this case challenges the jurisdiction of the county court to allow, as a claim against the estate, the demand of relator for legal services; such services being rendered to the administrator in due course of administration. The employment, rendition of the services, and reasonableness of the allowance are not in controversy. The specific contention is that relator's demand could only be collected through the administrator; that is to say, that it was a claim against the administrator, and not against the estate, and that he should have looked solely to the administrator, leaving that official to seek reimbursement from the estate through subsequent proceedings in court.

Were the matter one of first...