116 P.2d 715 | Okla. | 1941
This action is similar in nature to cause entitled Ruby Webb Wilson v. L.M. Duncan and the United States Fidelity Guaranty Co.,
As in the Wilson Case, supra, plaintiff's pleadings reveal that the guardian's final account was approved, he was discharged, and the surety company exonerated from liability on his bond by decree of the county court of Osage county which, in this instance, was entered November 24, 1926, or almost ten years before the commencement of the present action in the district court of said county. Here, too, the defendant surety company relies upon said decree as res adjudicata of all of the questions sought to be raised by the plaintiff's pleadings herein, and insists that since no surcharge appears to have ever been entered against McCool in the guardianship proceedings, plaintiff cannot maintain this action, citing Drum v. Citizens Trust Co.,
In an effort to avoid the operation of the principles cited in support of the trial court's ruling on the demurrers, plaintiff calls our attention to the fact that his pleadings contain an attack upon the validity of the county court's decree of November 24, 1926. His counsel cite allegations of his pleadings to the effect that the disbursements complained of as wrongful were all a part of the funds restricted by the Acts of Congress of April 18, 1912 (37 St. L. 86), and February 27, 1925 (43 St. L. 1008), and were not approved by the Secretary of the Interior or Superintendent of the Osage Agency as is required by said acts. One of the propositions presented in his brief is that this lack of approval rendered the expenditures in question beyond the jurisdiction of the county court to approve or allow, and that consequently its decree purporting to do so is void. It is unnecessary for us to determine the validity of such a decree under such circumstances for the reasons stated in the Wilson Case. (See the 1st, 2nd, and 5th paragraphs of the syllabus thereof.) While it is true that in this case the plaintiff alleges that some of the guardian's disbursements were neither approved by the county court, nor the proper official of the Osage Agency, nor Secretary of the Interior, and he also alleges that the various orders entered by the county court with reference to the matter of disbursement were not approved by the Secretary of the Interior, still he does not charge that said proceedings and final decree of said court were void upon their face. We are aware of no rule or regulation possessing the authority of law which requires the orders of the county court in such matters to have the approval of any of the above-mentioned officials endorsed thereon, although we are cognizant of the provision of section 1 of the Act of Congress of February 27, 1925, supra, stating that "All payments to legal guardians of Osage Indians shall be expended subject to the joint approval in writing of the court and the Superintendent of the Osage Agency." In accordance with the principles adhered to in the Wilson Case, a further discussion of the plaintiff's theory that the county court's decree is no bar to his action because of his allegations that the disbursements therein allowed had never been approved by the proper officials of the Osage Agency or Department of the Interior is unnecessary until it is determined whether or not the facts relied upon by the plaintiff constitute a proper ground for the vacation of said decree in this action. Before directing our attention to the portion of the briefs dealing with this question, however, another one of the *309 plaintiff's three propositions should be noticed. It is that "matters not actually embraced in a final report of a guardian and therefore not presented to and not determined by the court" at the hearing thereon "are not concluded" by the decree approving said report. In connection with the proposition plaintiff's counsel has thus stated, they refer us to the following allegations of his amended petition to wit:
". . . Plaintiff further alleges that said (John) J.W. McCool as the legal guardian of plaintiff Charles Drum, then incompetent, lawfully, rightfully and legally received money belonging to the estate of said Charles Drum, incompetent, the sum of $302,653.70 as shown by his guardianship reports and accounts; that of said sum disbursed only the sum of $277,329.08 as shown by his guardianship reports and accounts, leaving a balance unaccounted for in his guardianship reports and accounts the sum of $25,324.62."
In support of their argument concerning these matters, counsel quote a portion of the opinion in Dunleavy v. Mayfield,
The only asserted irregularity in said decree which is claimed to bring its vacation within the exclusive jurisdiction of the district court in the exercise of its equitable powers is that same was procured by fraud upon the court rendering it. As invoking this equitable jurisdiction, counsel for the plaintiff direct our attention to the allegations of his pleadings wherein the claim that the disbursements were allowed without approval by the proper officials is followed by the further claim that these alleged facts were concealed from the court as well as the additional facts that some of the items disbursed were in payment of alimony pendente lite, suit money, attorney's fees, and permanent alimony to plaintiff's former wife and her attorneys in connection with divorce proceedings wherein the wife irregularly obtained an allegedly void decree of divorce. The defendant herein asserts that said allegations concern intrinsic rather than extrinsic fraud, and therefore assert no cause for equitable relief against the decree whose vacation is sought, citing Calkin v. Wolcott et al.,
The rule relied upon by the defendant comprehends not only matters that were actually tried, but also those that were in issue and might have been tried. Greene v. Greene (Mass.) 2 Gray, 361; and see Southwestern Surety Ins. Co. v. Richard,
In Wright v. Saltmarsh,
According to the principles herein stated and applied, we find no cause for reversal of the trial court's judgment in any of the propositions urged for that purpose, and the same is hereby affirmed.
WELCH, C. J., CORN, V. C. J., and RILEY, BAYLESS, GIBSON, HURST, and ARNOLD, JJ., concur. OSBORN, J., absent.