18 Mo. App. 26 | Mo. Ct. App. | 1885
Opinion by
I. The respondent claims that the judgment of the circuit court should be affirmed because the appellant has failed to have the transcript of the record filed in the supreme court (from which court the case has been
The respondent might have made this motion at the October term, 1882, of the supreme court, but she has slept on her rights two and one-half years, permitting five terms of the court to pass without moving in the matter; thereby, by her own laches, allowing the appellant to regard his appeal as completed. Super-added to this, she does not make this suggestion for affirmance until the case is ready for hearing in this court, and does not file as the basis of her application -either a transcript of the record of the circuit court, as required by the general statutes, or the certification of the circuit clerk, as required by the act of 1883. She ought not thus to be permitted to rely upon the transcript filed by the adverse party at his expense while seeking advantage of his failure to file the transcript. Esly v. Post, 76 Mo. 412; Caldwell v. Hawkins, 46 Mo. 263.
II. There is no bill of exceptions in this record, and consequently there is no objection to any evidence to any objection offered or received on the trial, nor any Instructions for review, nor any motion for new trial nor in arrest of judgment. What then is before this court for review? In such condition of the record it is usual to say that the court can only examine such “errors as are apparent upon the face of the record,” and affirm or ¡reverse the judgment below as errors may or may not
There can be no question but that the citation in this case was sufficient. Even had it been informal, the defendant waived any objection thereto by appearing. It is equally clear that the probate court of
Admitting, however, all the defendant contends for in this case, that, from the pleadings and the entry made by the circuit court in passing on the motion for new trial, the plaintiff had attained her majority when defendant collected the money in question, is there any thing in all this to show that the judgment of the probate court is bad for want of jurisdiction to render it ? The appellant contends that the guardianship of the defendant over the plaintiff ceased on her majority. This may be conceded. In re Nicoll, 1 John Ch. 25; Jones v. Ward, 10 Yerg. 161; State v. Rosswaag, 3 Mo. App. 20. It may also be conceded, as a general rule, that when a guardian collects money of his ward after the ward reaches his majority, it .would establish the relation of debtor and creditor between them, and entitle the ward to maintain an action against him as for money had and received. Bull v. Towson, 4 Watts & Serg. 568-9; State ex rel. v. Willi, 46 Mo. 328. But does this rule involve the conclusion of law, that if, in making the settlement of the guardian’s accounts with the probate court, it should include in the charge against him an item received after his ward became of age, that would constitute such error apparent of record as would entitle the appellant to have it reviewed, without either motion for new trial or in arrest of judgment in the trial court %
Notwithstanding the majority of the ward the probate court still has jurisdiction to compel the guardian to make final settlement, and to render judgment against him for the balance found in his hands. If in such settlement the court should include an im
Furthermore, the position taken by the appellant involves the proposition, necessarily, that under no state of circumstances can the probate court render judgment against a guardian for moneys which come to his hands after the ward arrive, at full age. This is not sustainable. Giving the appellant the full benefit of his contention, that his return to the citation is a part of the record, by it he confesses that he collected this money from the estate of the ward’s father, as guardian. The judgment of the probate court expressly recites that he so received it and receipted for it. And the judgment of the circuit court, in effect, finds that he received it as guardian. Every intendment of law must be made in favor of the regularity of the judgment of courts of record, and the further presumption must be indulged, in a case where the evidence is not preserved in a bill of exceptions, that the necessary proof was made to warrant the judgment. Jones v. St. Jos. F. & M. Ins. Co., 55 Mo. 344; Bayha v. Kessler, 79 Mo. 555: Birney v. Sharp, 78 Mo. 73.
Without prolonging this opinion to unnecessary length with a review of the authorities, I conclude, both on authority and reason, that where a guardian under color of his office, either during the minority or the majority of his ward, obtains possession of the ward’s money or property before final settlement, he is estopped to deny, when called into court as guardian to account for it, that he received it as such guardian. After misusing his ofB.ce to carry to his pockets the money of his late ward — money which he could not have otherwise obtained
The court dealt quite leniently with this delinquent party in charging him only six per cent., interest. By his appeal he has now withheld from the child of his dead friend her inheritance for five years at six per cent. • and this court would be justified, perhaps, in affirming this judgment with ten per cent, damages. But we will give the defendant the benefit of the doubt. The judgment of the circuit court is affirmed.