82 P. 370 | Cal. | 1905
Lead Opinion
The appeal is from a judgment rendered upon a guardian's bond. The plaintiff, whose maiden name was Ceas, and who is the daughter of defendant George T. Ceas, while still a minor, became or was the owner of some property, and her father George T. Ceas was appointed by the probate court of Sacramento County as guardian of her person and estate, and in compliance with the requirement of the court, on April 2, 1883, entered into a bond in the sum of three thousand dollars, with C.P. Hensley and P.H. Gardiner as sureties. The plaintiff having arrived at age April 30, 1897, and her father as such guardian having failed to settle his guardianship or account to her and pay over the sums in his hands belonging to her, on the 21st of June, 1900, plaintiff commenced proceedings which resulted in a settlement of his account on the 24th of January, 1901. In said settlement it was ascertained and determined by the superior court of Sacramento County that there was a balance due from George T. Ceas as guardian of the plaintiff of $3,150.47. Upon demand being made by the plaintiff of the sum found due by the court and failure and refusal on the part of the guardian and sureties on his bond to pay the same, the plaintiff thereupon commenced an action against her guardian and the sureties on his bond for the recovery of the sum of three thousand dollars, being the sum mentioned in said bond. The defendant Ceas and one of the sureties, C.P. Hensley, defaulted, but the other surety, P.H. Gardiner, appeared and defended said action. In his answer he set up an affirmative defense that the judgment ascertaining and settling the final account had not become final, sixty days not having elapsed after the rendition thereof before the beginning of said action, and that said action was therefore prematurely brought. (It appears that an appeal was taken from said judgment settling said account and the judgment affirmed. (Guardianship of Ceas,
By another affirmative defense it was contended that the action was barred by the provision of section 1805 of the Code of Civil Procedure, which defense was also sustained by the court below. But this court, however, held that an action against the sureties of a guardian was not barred by the terms of section 1805 of the Code of Civil Procedure until three years after a final order of court removing or discharging the guardian, and that it did not appear that the guardian had ever been discharged or removed. Section 1805 of the Code of Civil Procedure, referred to, reads as follows: "No action can be maintained against the sureties on any bond given by a guardian, unless it be commenced within three years of the discharge or removal of the guardian; but if, at the time of such discharge, the person entitled to bring such action is under any legal disability to sue, the action may be commenced at any time within three years after such disability is removed." In the opinion of this court on this branch it is said: "A statute of limitation ought not be enlarged in its operation by judicial construction when it is so framed as to work injustice either by itself or in conjunction with other provisions of law. In this state we have one rule which prohibits an action on the bond of a guardian's surety until there is a final order settling the guardian's account, and another rule barring the action in three years after the removal or discharge of the guardian. So far as its express terms require, the rule must no doubt be enforced, even where without the fault of the ward a final settlement of the account has not been obtained within three years after the removal or discharge, but neither justice nor sound policy requires that a law capable of working so inequitably should be enlarged by construction so as to embrace a class of cases not comprehended in its terms. And this conclusion does not leave the sureties on guardians' bonds without an ample measure of protection against stale claims. They have all the advantage of the general statute of limitations, and of the doctrine of Barnes v. Glide,
Upon the going down of the remittitur in the former action the present action was commenced, July 29, 1904. The defendant Ceas, and Hensley, one of the sureties on his bond, failed to appear and defend in this action as in the former. The defendant Gardiner in his answer sets up the same affirmative defenses as in the former action, and in addition thereto alleges that said action is barred by the provisions of section 337 and subdivision 1 of section
On the present appeal it is contended on behalf of the appellant that the action is barred by laches on the authority ofBarnes v. Glide and similar cases, especially, however, on the authority of Barnes v. Glide,
This court on the appeal in the former action expressly held that it did not appear whether or not there was unreasonable delay on the part of the plaintiff in seeking a settlement of the account, and therefore the case was remanded with permission to bring another action. And, as already shown, in the present action the court below finds that there was no evidence presented by either party in reference to the cause of the delay, and nothing to show that the defendant was injured or his rights affected in consequence thereof, and that the plaintiff was not guilty of laches under the circumstances in the delay in demanding an accounting of her guardian. There having been no evidence, as shown, to support the plea of *620 laches, the case is in no better position as far as that defense is concerned than in the former action.
In this connection the question may well be suggested whether the sureties on the bond can in any event urge a delay by the ward in instituting proceedings to compel an accounting by the guardian after she arrives at age as sufficient laches to bar an action against them upon the bond, unless in cases where the conduct of the ward has in some way misled them or caused them to delay such proceedings. They have an equal right with the ward to institute proceedings for an accounting. It is the duty of the guardian to render the account, and for the performance of that duty they have become his guarantors; so that, in some respects, his duty is their own. But, in the view we take of the case, it is not necessary to decide this question, and we leave it without expressing any opinion.
Judgment affirmed.
Shaw, J., and Angellotti, J., concurred.
A petition for rehearing in Bank was denied, upon which Beatty, C.J., dissented, and on October 20, 1905, filed the following dissenting opinion: —
Dissenting Opinion
Having recorded my dissent from the order denying a rehearing of this cause, I desire to say that such dissent was not based upon any divergence of views as to the only question discussed in the department opinion, — viz., the question whether the defendant had established his defense, based upon the equitable doctrine of laches. That defense was only one of several separate defenses pleaded in the answer, and seems to have been abandoned in the trial court, as it certainly was on the appeal. The plea, and the only plea, upon which the defendant rested his case in this court, was the three-years statute of limitations, — subdivision 1 of section
First, the duty of a guardian to pay over to his ward the balance found due on settlement of his final account is a purely statutory duty, and an action thereon is barred at the expiration of three years after it accrues, — that is to say, *621
three years after such settlement, — and at the same time that the action is barred against the guardian an action upon the collateral obligation of his surety is barred. To sustain this proposition he cited the well-considered decision of this court in Bank upon rehearing of the case of County of Sonoma v. Hall,
This doctrine has been uniformly sustained in its application to a number and variety of cases in this state, and in other states. (See 13 Am. Eng. Ency. of Law, 1st ed., p. 726.) Usually it has been applied in this state to cases in which a previous demand on the part of plaintiff was necessary to perfect the cause of action, as in Bills v. Silver King Min. Co.,
"As to what is a reasonable time, that is ordinarily determined by the analogy of the statutory periods of limitation. If the cause of action is barred by the lapse of two years after it becomes complete, then the demand must be made within two years after the right to make it accrues, or a valid excuse must be shown for the failure to make it within that time."
This statement of the rule in my concurring opinion has since been adopted by the court, and has thus become the settled rule of decision here as in other states. (Merherin v. San FranciscoProduce Exchange,
All these and other cases decided here and in other jurisdictions were cited by counsel for appellant in his printed argument in support of the second proposition that the plaintiff could not wait an unreasonable time to institute proceedings to compel a settlement of her guardian's account — that a period of more than three years was an unreasonable time, and consequently that the three-years statute had fully run. I think his defense was clearly established, and that the judgment of the superior court should have been reversed. But whether this be so or not there can be no doubt that he was entitled to a hearing upon the case which he submitted to our judgment.
It is a matter of no practical consequence in view of the modification of that part of the Department opinion relating to the supposed "law of the case" to note the mistake of fact upon which it was founded, but I think the modification should have been more extensive. The statement still remains that the former case presented the same fact appearing here, — viz., that plaintiff delayed, without excuse, for more *624 than three years to take any step to compel an accounting. That fact was pleaded in the answer in the other case as part of the separate defense of laches, but of course was deemed denied, and since there was no finding upon the issue it did not appear from the record, which consisted of the judgment-roll alone, that three years, or even a single day, had elapsed before proceedings were commenced. And this date of the record showing a failure to find a fact material to the plea of the statute of limitations, was the sole occasion for what I said in my opinion regarding that plea and the doctrine of Barnes v. Glide.
Henshaw, J., concurred.