Dunsford v. Brown

23 S.C. 328 | S.C. | 1885

Lead Opinion

The opinion of the court was delivered by

Mr. Ohier Justice Simpson.

The action below was brought by the plaintiff, appellant, against the defendant Brown (guar*336dian of appellant), and the other defendants, his sureties, to set aside an alleged pretended settlement, receipt, and discharge claimed by the defendant Brown, and also for an accounting by Brown for his actings and doings as said guardian. The main defence interposed was res adjudicata, growing out of a previous action in which, as averred in the answer, the matters herein were considered and adjudged, first in the Circuit Court, and on appeal by this court, where the complaint was finally dismissed.

The case was heard by his honor, Judge Cothran, who, sustaining the plea of res adjudicata, dismissed the complaint. His honor further held that, independent of the plea of res adjudicata, there was a conspicuous and fatal omission in the complaint in that the facts and circumstances of fraud relied on by the plaintiff to vacate the settlement and discharge were not stated with sufficient particularity, the judge holding that in such cases the rules of pleading and practice which obtain in surcharging and falsifying a stated account, and more especially a settled account, should apply, which he held were not observed here. The appeal questions the two rulings above.

First, as to the plea of res adjudicata. It appears that the plaintiff attained his majority on May 20, 1880. On the next day he appeared with his guardian, the defendant, in the probate judge’s office for Richland County, and received the amount due him as ascertained by a previous statement of the guardian’s accounts made in said office, the amount being $1,496.78, which was then paid over to him by the probate judge, with whom it had been deposited by the guardian, he, the plaintiff, giving a receipt in full payment of all claim against said guardian, which receipt was filed in the probate judge’s office. In 1882 the plaintiff, without reference to this transaction in any way, commenced action against the present defendants, the guardian and his sureties, demanding an accounting, embracing in the demand not only what Brown had received since he became guardian, but also what a former guardian, one Weston, had received, and which the plaintiff claimed Brown ought to have collected from Weston. To this suit the defendants set up the defence of payment as a bar. An order of reference was made, directing the master “to take testimony upon all the matters of fact arising on the plead*337ings, to state the accounts between the parties, and to report the same, with all findings of fact.”

Upon this reference the case was fully developed, and notwithstanding the plea in bar, all the facts in connection with the settlement in the probate judge’s office, the discharge, &e., of May 21, referred to above, were brought out and reported. Judge Kershaw heard the case upon this report and the exceptions thereto. He sustained the master in holding that Brown was not liable for the amount received by Weston, but not paid over to him. He held, further, that although the transaction of May 21 had not been put in issue by the pleadings, and could not be attacked as a general rule by a collateral proceeding like that before him, yet the master having heard testimony upon this subject, he would regard that matter as embraced in the case, and to that end ordered an amendment so as to conform the pleadings to the proof, and he proceeded to pronounce judgment upon the whole case, setting aside the settlement and discharge of the probate judge and also the receipt of the plaintiff, and ordered Brown to account de novo, but, as we have said, exempting him from responsibility for the alleged errors in the accounting of his predecessor, Weston.

Upon appeal by defendant, this court held that it was error in the Circuit Judge to order and allow the amendment mentioned, or to determine the question of settlement and discharge, and upon full hearing this court dismissed the complaint. The plaintiff then filed a petition for rehearing, basing it upon several grounds, which were considered, and the petition was dismissed. 19 S. C., 560-571.

The plaintiff thereupon commenced the action below, in which' the settlement and discharge claimed by defendant Brown were directly assailed and r sought to be set aside, which resulted as already stated in the decree of Judge Cothran, dismissing the complaint for the reasons given.

The appellant contends that this court, finding error in the action of the Circuit Judge in the former case, in that he considered and passed judgment upon the settlement and discharge of the guardian, when said settlement and discharge were not in issue therein, in that he went behind this settlement and dis*338charge before it had been assailed and vacated by a direct and proper proceeding, dismissed the complaint upon that ground, and upon that ground alone, thereby leaving the validity of said settlement and discharge an open question ; and that such being the fact, the plea of res adjudicata ought not to have availed the defendant below in an action brought by the plaintiff this time directly to assail said settlement and discharge. Tt is true that this court did, in the former appeal, hold that the action below having been brought simply for an accounting, altogether ignoring a settlement had between the parties, and making no allegation of fraud or-imposition therein, the settlement and receipt given was a bar to said action, and that no accounting could be claimed until said settlement was set aside by a direct proceeding to that end. And if the court had held nothing more in that appeal but this, the position of appellant would be correct.

But the court went further. On page 567 of the opinion (19 S. C.) Mr. Justice McGowan, who delivered the opinion, used the following language: “But if the action had been brought directly for the purpose of setting aside the settlement and discharge, we do not see the evidence to sustain the judgment. There can be no doubt that a settlement was made with the ward after he came of age, who received the money, gave his receipt in full, and the guardian was discharged by the probate judge. We suppose that the settlement and discharge were not prima facie invalid, and what evidence is there to impeach the transaction ? The only circumstance tending in that direction is the fact that the settlement was made soon after the ward came of age, but that alone was not sufficient to overthrow it, if there was on the part of the guardian, Brown, no concealment, misrepresentation, imposition, or fraud.” The opinion then goes on to discuss the law involving settlements of guardian’s accounts with the ward shortly after he arrives at age, holding, finally, that there was nothing in this case to impeach the settlement.

All this was based upon the fact that notwithstanding the case might have been dismissed below on the settlement as a plea in bar, yet Judge Kershaw amended the complaint so as to bring in the question of the validity of the settlement and discharge, and passed judgment upon that question by setting aside said settle*339ment and ordering an account de novo. The court regarding it in that way as involved in the appeal, the judgment below was reversed and the complaint dismissed upon both the grounds. We think, therefore, that Judge Cothran was right in sustaining the plea of res ad,judicata below.

With these views it is unnecessary to discuss the other question raised in the appeal.

It is the judgment of this court that the judgment of the Circuit Court be affirmed.

Mr. Justice McIver concurred.



Concurrence Opinion

Mr. Justice McGowan.

I concur in the result; but the court having held in the former case that the proceeding was not „ directly to vacate the settlement, and if it had been, the defence and evidence might have been different, I would prefer to rest the judgment on the other ground, and not hold the matter as finally adjudicated.