U.S. Fidelity & Guaranty Co. v. Pittman

• Decision Date: 05 June 1913
• Citation: 62 So. 784,183 Ala. 602
• Parties: UNITED STATES FIDELITY & GUARANTY CO. et al. v. PITTMAN et al.
• Court: Alabama Supreme Court

62 So. 784

183 Ala. 602

UNITED STATES FIDELITY & GUARANTY CO. et al. v. PITTMAN et al.

Supreme Court of Alabama

June 5, 1913

Appeal from Chancery Court, Marshall County; W.H. Simpson Chancellor.

Suit by Eva Pittman and others against the United States Fidelity &amp Guaranty Company and another. Decree for complainants, and defendants appeal. Affirmed.

Phares Coleman, of Birmingham, and Street & Isbell, of Guntersville for appellants.

John A Lusk & Son, of Guntersville, for appellees.

SAYRE J.

Complainants (appellees), by their present guardian, filed this bill for an accounting against their former guardian, J. Grover Pittman, now deceased, and the Fidelity Company as surety on his bond. The deceased guardian is represented in the cause by the defendant Elrod, appointed to administer the former guardian's estate in succession to George E. Lee, after a decree of insolvency.

The settlement had in the probate court between these complainants and Lee, as administrator of the estate of the former guardian, and the decree there rendered were res inter alios as to the surety, the Fidelity Company. The surety was not, and is not, bound by any judgment or decree rendered against the personal representative of its principal. There was and is no remedy against the surety in a case of this character, involving the trust of a guardianship after the death of the principal, other than by a bill in equity. There can be, after the death of the principal, no judicial ascertainment elsewhere of his liability which would conclude the surety. Martin v. Ellerbe, 70 Ala. 326; Street v. Henry, 124 Ala. 153, 27 So. 411; Presley v. Weakley, 135 Ala. 517, 33 So. 434, 93 Am.St.Rep. 39. The fact that, under the statute, the ward may have execution against the surety on the guardian's bond, where the guardian himself has settled his trust in the probate court, does not give to the decree even in such case the force and effect of a judgment or decree against the surety, as was pointed out in Smith v. Jackson, 56 Ala. 25; Chancy v. Thweatt, 91 Ala. 329, 8 So. 283. The decree in the probate court having been fruitless, or nearly so, there can be no doubt of the general equity of the bill in this case against the surety, nor can it be questioned that the presence of the personal representative of the deceased principal is necessary. We are not required at this time to say what effect the probate decree may have in this cause in the way of limiting any decree that may result against the surety.

In appellant's brief two minor points are taken against the form of the bill. They are without merit. Of one of them we will say that if the failure to attach an exhibit at the place where it was called for by the bill be considered as constituting a blank, the bill, for that reason, might have been taken off the file on motion under rule 10 of chancery rules of practice; but the contents of the omitted exhibit did not go to the essential equity of the bill, and this defect could not be reached by demurrer. McKenzie v. Baldridge, 49 Ala. 564.

The cause was submitted by complainants for a decree of accounting on the original bill and answer, with exhibits. No testimony was taken, nor did the defendants on their part add anything to the note of submission. The answer, which was not under oath, admitted the substance of paragraphs one and two of the bill, which was that the former guardian had been duly appointed and that the defendant Fidelity Company had become surety on his bond. Paragraph three of the bill averred that "the said J. Grover Pittman, as guardian of the estate of these several complainants, received large sums of money and large amounts of property, a part of the estate of these complainants." In the answer this was met by the general averment that the allegations of the paragraph of the bill in which it is found were...