87 Ky. 195 | Ky. Ct. App. | 1888
delivered the opinion of the court.
On the fifth day of December, 1870, P. A. Nether-land, as the presiding judge of the Taylor County Court, permitted D. S. Mitchell, on his own motion, to qualify as the guardian of the appellant, Samuel A. Morris, an infant. D. S. Mitchell signed his own name to the bond that was required by the statute, and F. A. Netherland permitted him to sign the name of R. E. Jeter to said bond as surety, upon his state
Afterwards, Mitchell becoming insolvent, he was removed as guardian of the appellant, Morris, and another guardian was appointed in his stead. This guardian instituted an action on Mitchell’s bond as guardian, for the purpose of recovering the sum in his hands belonging to the appellant, Morris. To this action R. E. Jeter interposed the plea of non est factum, which was sustained by the circuit court; and this court, upon appeal, affirmed the judgment of the circuit court.
The appellant, Morris, having arrived at twenty-one years of age, being unable to make his money out of Mitchell, he seeks, by this action, to make the estate of F. A. Netherland, he having died, responsible for the money that went into the hands of D. S. Mitchell as his guardian. The circuit court having dismissed his petition, he has appealed to this court.
The proof is clear that D. S. Mitchell signed the name of R. E. Jeter to said bond without his authority ; and that Jeter did not thereafter ratify the act.
As the bond was executed prior to the adoption of the General Statutes, the question of F. A. Nether-land’s liability must be tested by the Revised Statutes, then in force.
Section 8, article 1, chapter 43, of said statutes, provided: “No guardian, except a testamentary one for nurture and education, can act until he has been appointed by the proper county court and given covenant, with good security, approved by the court, to the Commonwealth, faithfully to discharge the trust of guardian.”
By the third section supra it was made the absolute duty of the court to take covenant, with good security, from the guardian. The fourth section fixed the judge’s liability for a failure to take such covenant. By the first clause of said section the judge was made liable for any damage that the ward might sustain by his failure to take a covenant with one or more sureties from the guardian. If he took a covenant without security, he would be liable for the damage resulting therefrom to the, ward; because the third section was mandatory that he should take such covenant, and the first clause of the fourth section made him liable for the damage that the ward sustained by reason of the violation of the mandate: whereas, the second clause of said section only required the judge to satisfy himself that the surety was sufficient. To thus satisfy himself, it was incumbent on him to use reasonable diligence in ascertaining whether the surety wras sufficient; and if, after such diligence, he was satisfied that the surety was sufficient, he would not be liable in damages to the ward for an error of judgment.
But the first clause made the judge liable to the ward if he failed to take a covenant with surety from the guardian; the simple failure to take surety was made sufficient to hold the judge liable for any dam
Therefore, as F. A. Netherland, the county judge, allowed Mitchell to qualify as guardian of the appellant, Morris, without surety, he became liable to the latter for the damage he sustained by ^reason thereof.
Besides, Netherland was guilty of gross negligence in receiving the name of Jeter upon the bond, upon the assurance of Mitchell that he had Jeter’s verbal authority to sign it. For it was the duty of the judge •to satisfy himself that the surety was sufficient to secure the payment of the money that went into the guard
The two cases are parallel, and it is clear that, upon the ground of negligence, Netherland’s estate is liable.
The appellant brought his action within a year after his arrival at age. Therefore, he is within the'saving of the statute.
We think the lower court did right in refusing to dismiss the case on the ground of a want of affidavit and demand.
The fact that an injunction was issued against creditors in the case pending to settle Netherland’s estate,, did not prevent the appellant from bringing this action to settle his rights.
The judgment of the lower court is reversed, with directions to reinstate the case, and to ascertain the arnoimt of F. A. Netherlands liability, and to render judgment for the same.