Wackerle v. Wackerle

• Decision Date: 01 November 1897
• Citation: 168 Ill. 250,48 N.E. 123
• Parties: WACKERLE v. PEOPLE ex rel. WACKERLE.
• Court: Illinois Supreme Court

168 Ill. 250

48 N.E. 123

WACKERLE

v.PEOPLE ex rel. WACKERLE.

Supreme Court of Illinois.

Nov. 1, 1897.

Appeal from appellate court, Third district.

Petition by Kate Wackerle to compel Edward J. Wackerle to show cause why he should not settle his accounts as guardian, or give a new bond. Defendant failed to appear, and, on his neglect to give a bond as required by an order made in such proceeding, he was removed. From a judgment of the appellate court (65 Ill. App. 423), affirming a judgment of the circuit court which affirmed the order of removal, defendant appeals. Reversed.

H. G. Whitlock, for appellant.

J. M. Riggs, for appellee.

This is an appeal from the judgment of the appellate court for the Third district, affirming the judgment of the circuit court of Scott county, which affirmed an order of the county court of Scott county removing Edward J. Wackerle, the appellant here, as guardian, and appointing his successor. The facts are briefly these: In February, 1894, Edward J. Wackerle, then and still a resident of Morgan county, was, on his own petition, appointed by the county court of Scott county guardian of the four minor children of his deceased brother, Dr. Charles J. Wackerle. The children were all then under the age of 14 years. In his petition he set forth, among other things, that the children were residents of Scott county, and that their estate consisted of life insurance, about $2,400, and their distributive share of their father's estate, about $900, and estimating the whole at about $3,400. Letters were issued to him upon his giving the bond required, of $6,800. Afterwards, as it appeared, he collected and received for them, as their guardian, $2,400 of the Woodmen Insurance Company, $1,754 of the Home Forum Insurance Company, and $52.40 for house rent,-in all, $4,206.40,-which, added to his estimate of their distributive share, the actual amount of which was not shown, made $5,106.40. On November 12, 1894, upon the petition of their stepmother, Kate Wackerle, a citation was issued to him, returnable to the December term, to show cause why he should not settle his accounts or give a new bond, which was personally served on him. At his request, and, according to the testimony of the county judge, upon his promise to give in the meantime a better bond, with a certain party named as security, the matter was continued to the January term, 1895. Appellant testified that he tendered his resignation as guardian to the county judge of Scott county, in writing, about January 1, 1895; but the county judge testified that he had no recollection of receiving the same, nor, upon search, was he able to find it among the papers in the case. Appellant then filed his petition in the county court of Morgan county to be appointed guardian of these children, and at its December term, on January 4, 1895, he was appointed, on giving bond in the sum of $7,400. He then, on January 5, 1895, notified the county judge of Scott county by telephone of his appointment in Morgan county, and that was the first notice that the county court of Scott county had of such appointment, or of his application therefor. The appellant failing to appear at the January term of the county court of Scott county, to which term the petition for a better bond had been continued, the court, after a hearing, on January 7th made an order finding the facts to be as alleged, and requiring him to give a bond in $10,000 by the 14th of that month, a copy of which order was served upon him. From that order no appeal was taken. He did not comply with this order, nor show any cause for his failure to do so. On the 15th, the day after the expiration of the time fixed for the giving of the new bond, the court made an order reciting his failure to give the bond required, removing him as guardian, and appointing Byron McEvers his successor, upon said McEvers giving bond in $10,000, and requiring appellant, upon being served with a certified copy of said order and of McEvers' letters, to turn over to the latter all property of said wards, and that upon his failure to do so he would be in contempt of court. From this order the appellant has appealed.

CARTER, J. (after stating the facts).

This was a statutory proceeding begun in the county court of Scott county to compel the appellant to give a guardian's bond as contemplated by the statute; and, upon his refusal or neglect to comply with the order of the court in that regard, he was removed, and his successor appointed. The point is made by appellee that the judgment of the appellate court is conclusive upon the facts, and, as no propositions to be held as law were submitted to the court below, no question is presented for the consideration of this court. It can hardly be said, we think, that this is such a case as is contemplated by the forty-first section of the practice act. It is more nearly analogous to a proceeding in equity against a delinquent trustee. A court of equity has general jurisdiction over guardians and infants. Guardians, at common law, were treated as trustees, and as such were held responsible for the faithful discharge of the duties imposed upon them. The aid of courts of chancery has always been invoked to compel the execution of trusts and the protection of infants. In this respect the statute has made no change, but has given the county court power and jurisdiction...