112 Ark. 71 | Ark. | 1914
Lead Opinion
(after stating the facts). The bonds sued on in this case were payable to the State of Arkansas, and it is first insisted by counsel for defendants that the action should have been brought in the name of the State of Arkansas for the use of the minors. Since the adoption of the Code, the action may be prosecuted either by the State as a trustee of an express trust, as was done in the case of the State v. Buck, 63 Ark. 218, or by the real party in interest — that is, by the person entitled to receive the money, who, in this instance, is W. A. Cunningham as guardian of the minors as was done in the case of Turner v. Alexander, as Guardian, 41 Ark. 254.
It is next insisted that this action can not be maintained because the judgment of the circuit court reversed in some particulars the order of the probate court adjusting the settlement of the defendant Beakley when he was- removed from the guardianship of Sam and Jessie Moore, minors. The record shows that when the minors reached the age of fifteen years they chose W. A. Cunningham as their guardian, and he was duly appointed as such guardian by the probate court. J. N. Beakley, former .guardian of the minors, was removed, and the probate court took steps to adjust his accounts as such guardian and to determine the amount of his indebtedness to his wards, and an order was made by the probate court fixing the amount that said J. N. Beakley owed his wards, and the amount so fixed was ordered by the probate court to be turned over to W. A. Cunningham, the newly appointed guardian. Cunningham took an appeal from the order of the probate court, and in the circuit court the account of Beakley was readjusted, and the circuit -court made an order directing that he pay over to Cunningham, as guardian of said minors, the amount found to be due by it, and its judgment was ordered to be certified down to the probate court. The judgment of the circuit court fixed the liability of Beakley, and no appeal was taken from the judgment. It is true the judgment of the circuit court was not certified down to the probate court, but, as we have already stated, the amount due by Beakley to Ms wards was definitely fixed by the circuit court, and be was directed to turn over the amount so found to Cunningham as guardian of his former wards. The general rule is that in order to maintain a suit on a .guardian’s bond, there must be an adjustment of his accounts by the probate court and an order directing him to pay the amount found due to his wards or Ms successor in trust. The trust was closed as to Beakley by the judgment of the circuit court settling his account and directing him to pay the amount found due to Cunningham as the present guardian, and tMs brought his obligation to pay over the amount found due within the spirit of the rule without a formal entry of the judgment by the probate court, as directed by the circuit court.
The bond signed by the United States Fidelity & Guaranty Company as surety of Beakley was conditioned that upon the determination of his guardiansMp, he should deliver and pay to said minors; or any guardian that might be appointed for them after the determination of the guardianship of said J. N. Beakley, all the money, property and effects belonging to them in the possession or under the control of the said Beakley, and that he should in all things faithfully perform and fulfill Ms duty as guardian. The bond of the American Bonding Company was conditioned that Beakley should faithfully discharge Ms duties as guardian of said minors according to law. It is argued by counsel for the United States Fidelity & Guaranty Company that the breach of the bond occurred after Beakley’s release, and that it is not liable; but the facts, as shown by the record, fix the date in the lifetime of its liability. The property in the hands of the guardian was not accounted for, nor was his account adjusted and a settlement made with the probate court at the time the last bond was executed, so far as appears from the allegations of the complaint or the averments of the answer. The surety on his first bond was not discharged, and so far as the record discloses, there was nothing to preclude the probate court from subsequently settling the guardian’s accounts, and requiring him to account for and pay over the amounts in his hands at the time his last bond was executed; and the surety on his first bond would be liable thereon until it was discharged by the probate court; or until the property of the minors in the hands of the guardian was turned over to the person legally entitled to receive it. Therefore, the plaintiff was entitled to recover against the United States Fidelity & Guaranty Company. It was the duty of the guardian to hold and preserve the property of the minors until he was ordered by the probate court to pay the same over to them or their legally constituted guardian thereafter appointed by it. Therefore, the breach of the bond was a continuing one because it was the duty of the guardian to account to the probate court for the minors’ property and to preserve the same until he was orderd to pay it to the minors, and the surety on the last bond is also liable. Dugger v. Wright, 51 Ark. 232. As was said in this case:
“ There are no terms in the office of executor or administrator, and the principle which is properly invoked in the case of a public officer who executes a bond for the faithful discharge of the duties of his office for the term upon which he is about to enter, is not applicable. The new bond, or the obligation of the new sureties, relates back, and the two sets of sureties are jointly liable to the distributees and others for whose benefit they have contracted, for breaches committed prior to the second execution.” The rule applies with equal force to a guardian’s bond.
It is next contended by counsel for defendants that the court erred in charging the sureties with interest after the discharge of Beakley as guardian. They rely on the case of Haden v. Swepston, 64. Ark. 477, where the court held that where a guardian is removed from his office without any order being made for the disposition of funds then in his hands, his surety is not liable for interest subsequently accruing on such funds. In the case at bar the facts are different. When Beakley was removed from his guardianship, the court proceeded at once to adjust and settle Ms accounts, and at the same time made an order fixing his liability and directing Mm to pay over the funds of the minors in his hands to the newly appointed guardian.
Finally it is insisted by counsel for defendants that the ease should be transferred to equity in order to settle the right of contribution between the eo-sureties. In the case of Dugger v. Wright, supra, there were two sets of sureties, and the sureties on the second bond were distributee's and plaintiffs in the action. The court held that the sureties on both bonds were liable, and that the defendant’s answer, having set forth all the facts, presented an eqMtable defense to the extent of the amount they could claim by way of contribution against their co-sureties, who were plaintiffs. Here the co-sureties were all defendants, and they had no right to delay the plaintiff in the prosecution of Ms sMt in order that any equities that might exist between themselves, as co-sureties, or any right of contribution between them, might be worked out. This could have been done just as well in an independent sMt. See Berton v. Anderson, 56 Ark. 470.
It follows that the judgment will be affirmed.
Rehearing
ON REHEARING.
It is insisted by counsel for defendant that their answer shows that they were entitled to certain credits which were not allowed them. They say that Beakley, as guardian, had in Ms hands certain notes belonging to the minors which were uncollectible, and for wMch he did not receive credit; that he paid certain ditch taxes, and other matters, for which he never received credit. It was alleged in the complaint, and admitted by the defendants in their answer, that when the minors arrived at .the age of fifteen years and chose another guardian, Beakley was removed by the probate court from the guardianship of said minors, and that the court proceeded at once to settle and adjust Ms accounts. The probate court was the proper forum to settle and adjust the accounts of the guardian, and the matters now complained of were put in issue and embraced in that settlement. The newly appointed guardian appealed from the settlement made by the probate court to the circuit court, and upon the trial of the matter in the circuit court, the same issues were involved and the circuit court readjusted the accounts of Beakley and made a final settlement thereof. All the matters now complained of were put in issue and settled by the judgment of the circuit court. No appeal was taken from that judgment, and it was res ad judicata as to the accounts of Beakley with his wards. Moreover, the pleadings show that the judgment rendered in the circuit court was an agreed judgment.
It is next insisted by counsel for defendants that the judgment rendered against the guardian was not conclusive against the sureties; but this court has decided adversely to them on this question in the case of George et al. v. Elms et al., 46 Ark. 260. In that case it was held that a judgment against an administrator was conclusive evidence against the sureties. So, here, the judgment was conclusive evidence against the sureties, as well as the guardian in an action upon the latter’s bond in the circuit court.
It follows that the motion for rehearing must be denied.
