United States Fidelity and Guaranty Company v. Nash
| Decision Date | 17 February 1912 |
| Docket Number | 652 |
| Citation | 121 P. 541,20 Wyo. 65 |
| Parties | UNITED STATES FIDELITY AND GUARANTY COMPANY v. NASH, AS GUARDIAN |
| Court | Wyoming Supreme Court |
Rehearing Denied June 10, 1912, Reported at: 20 Wyo. 65 at 82.
ERROR to the District Court, Sheridan County; HON. CARROLL H PARMELEE, Judge.
The material facts are stated in the opinions.
Affirmed.
M. B Camplin, George W. Farr, and C. R. Tisor, for plaintiff in error.
At the time of the commencement of the trial the value of the interest of the ward, in whose behalf the suit was brought, in the property alleged to have been converted by the guardian was alleged to be $ 1600. Since the trial was commenced, so far as plaintiff in error is able to ascertain, that amount was changed in the petition to $ 3000. The prayer in the petition was originally for $ 1600, and that was changed after the commencement of the trial to $ 3000. Whatever demand was made upon the plaintiff in error prior to commencement of suit was for the sum of $ 1600. Judgment was entered for $ 2790 and interest, although at the time of the trial judgment was prayed only for the sum of $ 1600.
The alleged bond is insufficient in form and substance, and is not such a bond as is required by the laws of Montana. Before suit could be maintained upon the bond it was necessary that an accounting be had in the court wherein the guardianship proceedings were pending. (Graff v. Mesmer, 52 Cal. 636; Allen v. Tiffany, 53 Cal. 16; Hudson v. Barratt, (Kan.) 61 P. 737; Chaquette v. Ortet, 60 Cal. 594; Reither v. Murdock, (Cal.) 47 P. 784.) There having been no accounting in the probate proceedings the defendant in error should have brought suit in the district court in and for the county in Montana wherein the guardianship proceedings were pending against the administratrix of the estate of the deceased guardian to compel her to go into court and render an accounting in the guardianship proceedings. In that suit the surety, plaintiff in error herein, could have been made a party defendant and could have participated in the accounting. The accounting must be had in the court having jurisdiction of the subject matter and where all the parties can be brought before it. The courts of Wyoming can have no jurisdiction over probate matters pending in Montana. Nor can they have jurisdiction over the estate of the deceased guardian which is being administered in a proceeding pending in the district court for Rosebud county in Montana, nor over the administratrix of that estate. It is therefore contended that the district court of Sheridan County in this state had no jurisdiction and could acquire no jurisdiction over either the subject matter or any of the real parties in interest in this action.
No liability ever attached to the plaintiff in error for the failure of the guardian to faithfully discharge his duties, and no state of facts can exist which would entitle anyone to a recovery against the surety by reason of the execution of the so-called bond.
Burgess & Kutcher, for defendant in error.
Under the circumstances of this case no settlement of the affairs of the guardianship can be had in the guardianship proceedings in Montana for the reason that the guardianship has terminated by the death of the guardian. Conceding that the court in Montana might compel the administratrix of the deceased guardian's estate to render such an accounting, that court could not acquire jurisdiction until its power is invoked by some appropriate method, nor would it have such jurisdiction unless it is expressly conferred by statute. No law of Montana is pleaded or proved giving such jurisdiction to the Montana court over the personal representative of the deceased guardian. In the absence of proof of such statute a court of equity has jurisdiction. (21 Cyc. 155; Harris v. Calvert, (Kan.) 44 P. 28; Mitchell v. Kelly, (Kan.) 107 P. 782; In re Allgier, (Cal.) 3 P. 849; Miller v. Ash, (Cal.) 105 P. 608.) The District court of Sheridan county in this state had jurisdiction: 1. The action is transitory in character, it is upon a contract under which the guardian and the surety were jointly and severally liable. This is so declared by a Montana statute pleaded in the amended petition. 2. Rights acquired under the statutes of another state will be enforced if not against the public policy of the state wherein the suit is brought. (Herrick v. Minneapolis, &c., (Minn.) 16 N.W. 413; Burns v. Grand Rapids, &c., (Ill.) 15 N.E. 230; Eingartner v. Ill. Steel Co., (Wis.) 68 N.W. 664; Handy v. Ins. Co., 37 O. St. 366.) We do not combat the general rule that there must first be an accounting or judgment against the principal in the court where the guardianship or administration proceedings are pending before recovery can be had upon the bond of the guardian or administrator, although there is a respectable array of authority to the contrary. (See 21 Cyc. 240.) But this case clearly falls within well recognized exceptions to that rule, and none of the reasons for the rule exist where the circumstances are like those in the case at bar. The guardian had disposed of all of the property of the wards, converted the proceeds to his own use, and he died insolvent. No reason exists under those circumstances for a previous judicial accounting as a condition precedent to suit upon the bond. On the contrary, suit may be brought against the surety under such circumstances without first compelling an accounting against the personal representative of the guardian. (Miller v. Ash, supra; Bischoff v. Engel, 41 N.Y.S. 815; Kurz v. Hess, 83 N.Y.S. 773; Parker v. Dominick, 94 N.Y.S. 248; Lang v. Lang, (N. Y.) 37 N.E. 489; Otto v. Van Riper, (N. Y.) 58 N.E. 644; McDonald v. People, (Colo.) 69 P. 703; Farrington v. Secor, (Ia.) 60 N.W. 193; Miller v. Kelsey, (Me.) 60 A. 717; Mitchell v. Kelly, supra; Robb v. Perry, 35 F. 102.)
The plaintiff in error was surety for compensation, and it is therefore relieved of the benefit of the doctrine that a surety is a favorite of the law. (32 Cyc. 306.) When a guardian dies without accounting it becomes the duty of the surety to account and pay over what is due the ward. (Farrington v. Secor, supra; Slater v. McAvoy, (Cal.) 56 P. 50.) When the ward shows the receipt of property by the guardian the burden is on the surety, in an action on the bond, to show the disposition of it. The bond is a good and sufficient one under the Montana statute, which makes ample provision for recovery upon such a bond when there are defects in any substantial matter or condition required by law to be stated. (Hubert v. Mendheim, 30 P. 633.) The surety is estopped from denying the validity of the bond. (Est. of Ramsay v. People, (Ill.) 90 Am. St. 177.) Although a statutory bond is defective it may be enforced as a common law bond. Although the condition of a bond may be void the obligation will still stand. (Giles v. Holsted, (N. J.) 61 Am. Dec. 668; 82 Am. St. 205.)
Where a pleading or a paragraph thereof is struck out on motion the situation is the same as though such pleading had never been tendered and it will not be considered a part of the record unless made so by bill of exceptions. Counsel for plaintiff in error calls attention to the fact that the prayer in the petition at the time of the trial was for $ 1600, and state that the change to $ 3000 must have been made after the introduction of testimony on behalf of the plaintiff. This we deny. The record is silent as to any amendments to the petition save one, and that is an amendment by interlineation appearing in paragraph seven of page seven of the petition, and it does not appear from the record when that amendment was made. If there were any amendments made, the record is silent as to objections or exceptions thereto on the part of plaintiff in error. The appellate court cannot assume that any wrongful amendments were made or allowed, but in order to present any question on appeal touching the action of the court with reference to amendments, the record must show the objection and exception thereto. Where a party fails to clearly point out in the original brief the specific errors complained of and to discuss them he cannot raise them in a reply or supplemental brief. (Gates v. Baltimore, &c., (Ind.) 56 N.E. 722; People v. Cole, (Mich.) 102 N.W. 856; Shumacher v. Bell, (Ill.) 45 N.E. 428.
This action was commenced in the district court of Sheridan County by the defendant in error against the plaintiff in error as surety upon a guardian's bond to recover the value of the ward's property alleged to have been wasted and converted by the guardian to his own use. The...
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United States Fidelity and Guaranty Company v. Nash
...v. NASH, AS GUARDIAN No. 652Supreme Court of WyomingJune 10, 1912 20 Wyo. 65 at 82. Original Opinion of February 17, 1912, Reported at: 20 Wyo. 65. Petition for rehearing Burgess & Kutcher, for defendant in error. (On petition for rehearing.) The plaintiff in error did not object or take an......