68 Ind. 104 | Ind. | 1879
This was a suit by the appellee’s relators, against the appellants, upon a bond given by a guardian, ou his petition to obtain an order from the proper court, for the sale of the real estate of his said wards.
In their complaint, the appellee’s relators alleged, in substance, that on the 9th day of July, 1859, one Joseph Allen, since deceased, filed his petition in the court of common pleas of Montgomery county, Indiana, to obtain an order of said court authorizing him to sell certain real estate belonging to his wards, the relators of the appellee in this action j that, on said last named day, the said Joseph Allen executed his bond, with the appellant Benjamin F. Ristine and one Jacob Davis, since deceased, of whose estate the appellant Elizabeth Davis was the administratrix, as his sureties therein, payable to the State of Indiana, in the penal sum of two thousand four hundred dollars, and conditioned for the faithful discharge of his trust in and about the sale of said real estate, a copy of which bond was filed with, and made a part of, said complaint; that said Joseph Allen, as such guardian, under the condition of said bond, sold his said ward’s real estate to one Benjamin Misner for the sum of one thousand two hundred dollars, which said sale was duly confirmed by said court, at its October term, 1859, and the said sum of one thousand two hun
To this complaint the appellants jointly demurred, for the following causes :
1. Because it did not state facts sufficient to constitute a cause of action ;
2. That the appellee’s relators had not the legal capacity to sue; and,
8. That there was a defect of parties plaintiffs.
This demurrer was overruled by the court, and to this decision the appellants excepted. They then answered jointly in six paragraphs, to the second, third, fourth and sixth paragraphs of which answers the relators’ demurrers, for the alleged insufficiency of the facts therein respectively, were sustained by the court, and to these rulings the appellants excepted. The cause was then put at issue, and was tried by the court, apparently; for, although the record fails to show any submission or trial of the cause by
In this court, the appellants have assigned, as errors, the following decisions of the court below:
1. In overruling their demurrer to the relators’ complaint ;
2. In sustaining the relators’ demurrers to the second, third, fourth and sixth paragraphs of the appellants’ joint answer; and,
8. In rendering a personal judgment against the appellant Elizabeth Davis, administratrix of the estate of Jacob Davis, deceased.
1. In their brief of this cause, in this court, the appellants’ counsel insist that the complaint of the appellee’s relators was bad on the demurrer thereto for the want of sufficient facts, in this, that the alleged breach of the bond in suit was not assigned with sufficient certainty, clearness and precision. If the complaint was defective in this regard, and it probably was, as it seems to us, the objection to the complaint, in this particular, is one that could not be reached by the appellants’ demurrer for the want of facts, but only by a motion to make the complaint more certain and specific. The breach of the condition of the bond in suit is assigned, in the complaint, as follows : “That said Joseph Allen, during his lifetime, wholly failed and refused to account to this court, or to plaintiffs, for the proceeds of the sale of said real estate of plaintiffs.” Elsewhere in the complaint, it was alleged that said Joseph Allen had died in 1871. Dp to fhe time of Allen’s death, the court of common pleas of Montgomery county had, by law, exclusive jurisdiction of the matter of his guardianship of the relators ; and it is claimed, that the allegation
Besides, it was also alleged in the relators’ complaint, that, at the time of Allen’s death, “he held in his hands, as such guardian, the said sum of twelve hundred dollars, belonging to plaintiff's, as the proceeds arising from the sale of their said real estate.” This allegation was sufficient to show, with reasonable certainty, as a breach of the bond in suit, that the said Joseph Allen, as such guardian, had never accounted to any court, or to the relators, for any part of the proceeds of the sale of said real estate. We think that the relators’ complaint stated sufficient facts to constitute a cause of action. The other grounds of demurrer to the complaint are not discussed in the brief of appellants’ counsel in this court, and, therefore, we regard them as waived.
It seems to us that the court committed no error in sustaining the relators’ demurrer to this paragraph of answer. It will be observed, that it was not alleged therein that the alleged final settlement, which had been prepared and filed, had ever been approved, allowed or confirmed by the order and judgment of the proper common pleas court. Until such alleged final settlement had been thus approved and confirmed, it did not become a part of the files of the court, in any proper or legal sense, and, if it had been found by the appellants, it would not have been competent evidence on their behalf, on the trial of this cause. Even if such alleged settlement had been verified by the oath of Allen, which fact, if it existed, was not alleged in said
Besides, it is well settled by the decisions of this court, that a judgment will not be reversed for an alleged error of the court in sustaining a demurrer to a paragraph of answer, when it appears, as it does in this case, that every material fact alleged in such paragraph could have been given in evidence under another paragraph of the answer, on which issue had been joined. In so far as this sixth paragraph set up and relied upon payment to, and settlement with, the relators, of the money arising from the sale by their guardian of their real estate, the facts in regard to such alleged payment or settlement could have been given in evidence under the issue joined in the cause, by and on the other paragraphs of the answer.
The other decisions of the court below, assigned by the appellants as errors, are not discussed by their counsel in this court, and we therefore regard them as waived, and do not consider them.
The judgment is affirmed, at the appellants’ costs.