Davis v. Clark

58 Kan. 454 | Kan. | 1897

Lead Opinion

Johnston, J.

The action was not barred against Lalla C. Collins, the principal on the bond, and the main question for our determination is whether it was barred against the sureties. It was not brought until more than three years after Mrs. Collins was ordered by the probate court to turn over the assets of the estate to her successor, and the court held that the three-year Statute of Limitations was applicable. It is contended by the plaintiff in error that the basis of the action is a contract in writing, and that therefore it may be brought at any time within five years after the right to sue accrued. The cause of action,.however, does not arise out of the bond, but rather from the default of the administratrix, or her failure to account for and pay oyer the money of the estate when ordered by the court. The bond, as has been held, is only collateral security for the enforcement of causes of action that may arise; and while there is a statute barring a cause of action upon the bond, which accrues more than five years before the action is begun, it does not suspend the operation of other statutes of limitation. And when a cause of action is barred by any statute of limitations, the right to maintain an action therefor upon a bond necessarily ceases to exist. Ryus v. Gruble, 31 Kan. 767.

. administrator Larred, when. We think the action was upon a liability created by statute, which, under the Code, could only be brought within three years after the cause of actioii accrued. The omce or admmistrator is created and the trust; defined by statute. Every step to be taken and every duty to be performed is prescribed. He takes only such powers as the statute confers, and all of his duties, functions and liabilities are fixed by statute. The substance, if not the form, of the bond of the administrator is prescribed by statute, but it does not give the cause of action. The liability of the administrator exists independently of the bond, and is just such a liability as the statute defines. The foundation of the plaintiff’s right of recovery was the liability of the administratrix to pay over the money in accordance with the order of the probate court; and the action thereon accrued under, and was limited by, the statute. Without the statute, the plaintiff, who is an administrator de bonis non, could not maintain an action on his predecessor’s bond. Under the common law, he simply took up the estate where his predecessor left it, and had to do only with the goods of the estate which remained unadministered. The former administrator was responsible to creditors and next of kin for defaults and delinquencies, but was never liable to his successor for property of the deceased which had been converted into money. Beal v. New Mexico, 16 Wall. 535; Carrick v. Carriek, 23 N. J. Eq. 364; Court of Probate v. Smith, 16 R. I. 444, 17 Atl. Rep. 56. Our statute, however, gives the substituted administrator the right to maintain an action against his predecessor, as well as the sureties upon his bond. Gen. Stat. 1889, ¶ 2810. It therefore appears that the right of the plaintiff to bring an action against the former administratrix and her bondsmen is derived solely from the statute; and, for this reason, we think it may fairly be said that the liability of the principal and sureties is created by statute, and an action thereon must be brought within three years after it accrues. Authority is found for this view in Comm’rs Graham Co. v.Van Slyck, 52 Kan. 622. That was an action in favor of the county to recover from the county clerk fees for his services, which under the statute were to be accounted for, and deducted from each quarterly allowance of his salary. The action was upon the official bond of the county clerk; and it was held that it was based upon a liability created by statute, and must therefore be brought within three years after it accrued.

„ . . . prin^paiout’of1 state' The absence from the State of the principal did not suspend the running of the Statute of Limitations in favor of the sureties. The liability upon which the action was brought was several, and the general rule is that, where there is a several liability, each is entitled to the protection of the Statute of Limitations, and can be deprived of it only by some personal act of his own. Steele v. Souder, 20 Kan. 39. "When the administratrix made default, the sureties at once became liable; and an action could have been brought against them, although she had absconded and was beyond the jurisdiction of the courts. The Statute of Limitations would be of little benefit to the' sureties if the concealment or absence of the principal would extend their liability indefinitely. The statute is one of repose, designed for peace and quiet, and as the sureties are severally liable, we think they are severally entitled to the protection of the statute.

The judgment of the District Court will be affirmed.

Dostee, C. J., concurring.

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Dissenting Opinion

Allen, J.

(dissenting). This action is on the official bond of an administratrix, and clearly falls within the fifth clause of section 18 of the Code of Civil Procedure. As to the sureties, there is, and can be, no liability created by statute. Their liability arises solely from having signed the administratrix’s bond, and her default. The liability is fixed by the terms of the obligation they signed, and the law as it stood at the time of its execution. The Legislature is powerless to impose by statute a liability on them which they did not incur by the execution of the bond. As to them, there was not, and cannot be, a liability created by statute. Whether the liability of the administratrix be one created by statute or upon a contract express or implied, is unimportant, for the case falls within section 21 of the Code, she having been absent from the State a sufficient length of time to take away the bar of the statute. Her liability is conceded, and the court rendered a judgment against her. Sureties on the bond of an administrator may plead as a defense to an action against them, either that the cause of action on the bond accrued more than five years before the commencement of the suit, in which event they would be discharged from liability whether their principal was so or not, or, that the cause of action against the principal was barred by some shorter limitation, and being barred against the principal, it would, of course, be barred against the sureties.

• Under the bond, they could never be liable when the principal was discharged. But neither of these pleas could avail the sureties in this action, for it was brought in less than five years after it accrued, and the principal has not been discharged from liability by any other statute of limitations. There is, therefore, no defense of which they may avail themselves.