67 Neb. 276 | Neb. | 1903
Section 32, chapter 34, Compiled Statutes (Annotated Statutes, sec. 5402), provides that “no action shall be maintained against the sureties in any bond given by the guardian unless it be commenced within four years
It appears that the statutory provision under consideration originated in Massachusetts. Afterwards it was adopted by Michigan. Thence it passed to Wisconsin, and from Wisconsin it came to Nebraska. This history is sufficiently clear from inspection of the several statutes themselves, but has been carefully worked out by the supreme court of Wisconsin in Paine v. Jones, 93 Wis., 70, 67 N. W. Rep., 31. The court say (p. 74) : “The statute seems to have originated, or been first adopted in this country, in the state of Massachusetts, where it is first found in the Revised Statutes of 1836,
In Nebraska Loan & Building Ass’n v. Marshall, 51 Nebr., 534, the court declined to apply the general rule because of another provision in the statutes which indicated a different intention on the part of the legislature, and because the courts of the state from which the statute had been taken had since altered their opinion as to its construction.
Also, in Morgan v. State, 51 Nebr., 672, it was held that the prior construction had no more force than would be allowed to a previous decision of this court construing the statute, and hence might be rejected for reasons which would require such course had the decision been rendered here originally.
In Rhea v. State, 63 Nebr., 461, this proposition was somewhat restricted, and alteration of the statute' by subsequent amendment, as to a point on which the prior construction largely rested, was held to afford ground for independent interpretation.
In view of these later decisions, we think the rule may be formulated thus: Ordinarily the adopted statute should be construed here as the courts of the state from which it was taken had construed it prior to its adoption, in the absence of any indication of a contrary intention on the part of the legislature. The decisions in Michigan and Wisconsin were subsequent to our adoption of the statute here in question, and have persuasive authority only. Myers v. McGavoch, 39 Nebr., 843, 42 Am. St. Rep., 627. For these reasons, it may be proper to treat the question as in some measure a new one, and to indicate the considerations which move us to adopt the construction given by the courts of Massachusetts.
In Loring v. Alline, supra, the court said (p. 70): “By the term ‘discharged,’ in this statute, is intended any mode by Avliich the guardianship is effectually determined and brought to a close, either by the removal, resignation, or death of the guardian, the marriage of a female guardian,
As the court said in Hudson v. Bishop, 32 Fed. Rep., 519, 521, construing the statute of Wisconsin: “This is a special limitation for the benefit of the sureties, and does not affect the right to recover from the guardian. The limitation begins to run ‘from the time the guardian shall be discharged.’ ” The purpose is “to fix a time certain, for the benefit of the sureties, so that they may know definitely when their obligations as sureties will terminate.” Paine v. Jones, supra. No other meaning can be given to the language used. As the court say in the case just cited (p-76) : “To say the term ‘discharged’ is synonymous with ‘settlement of the guardian’s account with the proper court, or with the ward,’ Avould seem to do violence to the language used. * * * We are unable to see wherein a mere settlement of the guardian’s account, without actual compliance with the order of the court, operates as a discharge, in any sense.”
We recommend that the judgment be affirmed.
For the reasons stated in the foregoing opinion, the judgment of the district court is
Affirmed.
Chapter 79, sec. 36.