232 P. 847 | Okla. | 1924
Parties will be *141 referred to as they appeared in the trial court, inverse to their order here. Renfrow, guardian of Leon May Furgerson, a minor, had judgment against W. E. Furgerson, former guardian, and B. H. Markham for $1,412.75 on two guardianship bonds. Defendant Markham appealed. The bonds were in the usual form for such purpose and exhibited to the petition. The first was a general bond for $1,000. The second, for $2,000, was a special or "sales bond" given on the sale of real estate of said minor. Furgerson, as principal, and Markham as surety, signed each bond. Two others also signed the first as sureties and one, not signatory of the first, also signed the second bond as surety. Plaintiff alleged, inter alia, that Furgerson had been removed as guardian of said minor by the county court of Pittsburg county and plaintiff appointed; that there was found to be due from Furgerson, the guardian, to the estate of said ward, said sum, as proceeds of the sale of lands belonging to the minor; that on demand defendant had refused to pay same. The order of the county court was exhibited to said petition showing that there was due and owing from said guardian to the estate of said ward, said sum, and that he was ordered and directed to pay same into court within 30 days from the order, in default of which suit should be brought upon his bond. This finding and order was made on a hearing required of Furgerson for making his final report and for his removal. No appeal was taken therefrom. Plaintiff's evidence reasonably supports said allegations in every material respect. Defendant introduced no evidence. Defendant's two assignments of error will appear in the propositions herein discussed.
1. It is laid down in Southern Surety Co. v. Burney et al.,
2. Said finding and decree of the county court was conclusive on the defendant Markham as surety, no fraud being alleged. Title Guaranty Surety Co. v. Slinker,
3. The devastavit of Furgerson having been thus sufficiently averred and proved, it was not necessary for plaintiff to aver and prove that the devastavit set up had not been paid. It was for defendant to plead and prove such payment. Southern Surety Co. v. Jefferson,
It is recommended that the judgment be affirmed.
By the Court: It is so ordered.