114 Ky. 11 | Ky. Ct. App. | 1902
Opinion of the court by
— Reversing.
These two cases, involving identically the same questions, will be disposed of together. Appellants are infants. In September, 1893, J. G. Galloway was appointed - their guardian, and qualified in the Garrard county court. He died insoNent, owing his wards a balance. Suit was filed upon his bond as guardian against the surety in the bond, Frank Galloway, who was his father. The surety’s name had been placed to the bond under a power of attorney, and he pleaded that it was not his act or deed. The case was tried, and, on final hearing, judgment was given in favor of the surety on this plea. The wards then filed these actions against the county judge and his sureties on his official bond to recover for his failure to take the
(Section 2017, Kentucky Statutes, requires a guardian to execute bond before acting. Section 2018 then provides- “'If the court fails to take such covenant or accept such person or persons as surety as do not satisfy it of their sufficiency, the judge so in default and his sureties shall be jointly and severally liable to the -ward for any damages he may sustain thereby.” It will be observed that the judge and his sureties are made liable to the ward for any damages he may sustain, “if the court ’fails to take such covenant.” In Daniels v. Vertrees, 69 Ky., 4, the name of one of the wards was omitted from the bond and so no bond was taken to this ward, as the surety was not bound beyond the undertaking of his covenant. The county judge and his sureties were held liable, notwithstanding the order of the court by which the guardian was appointed recited that a bond was executed. In Com. v. Netherlands Adm’r, 87 Ky., 195 (10 R., 123) (8 S. W. 272), tbe county judge allowed the name of the surety to be signed to the bond by the principal upon his statement that he had the verbal authority of the surety to sign his name to it. The court, after pointing out that the second clause of section 2018, relating to the solvency of the surety only, required tbe county judge to use reasonable diligence in ascertaining whether tbe surety was sufficient, said: But the first clause made the judge liable to the ward if he failed to take the covenant, with surety, from
Judgment in each case reversed, and cause remanded for a new trial.
Petition by appellant for extension of opinion overruled.