64 Ala. 399 | Ala. | 1879
It is conceded that an action at law cannot be maintained by the ward upon the bond of the guardian, until the liability of the guardian has been ascertained by the decree of a court of competent jurisdiction. An action at law upon the bond is not an appropriate mode of ascertaining and fixing the liability. A decree of the Court of Probate, or of the Court of Chancery, having jurisdiction to take the accounts and settle the administration of the guardian, ascertaining the amount of his liability, establishes the right of the ward to maintain an action at law upon the bond, against the principal and sureties jointly, or either of them separately. It is admitted that, when such a decree is rendered by the Court of Probate, in the absence of fraud, it is conclusive on the sureties. The argument is made, that this is true only of a decree of that court; and is true of such a decree, because the sureties are quasi parties to it, by virtue of the statute, which authorises an execution against them founded on it (Code of 1876, § 2794); but that it is not true of a decree in chancery, rendered on a bill for a settlement of the guardianship, filed by the ward, to which he does not, as he may, make the sureties parties.
We do not enter on the question, whether, prior to our present statute, if a ward had filed a bill against the guardian and one or more of the sureties, omitting others, the sureties could not have demurred for the omission. It may have been their right to have required that their co-sureties, unless some good reason for the omission was shown, should be before the court, affected and bound by the decree sought against them, and compelled to contribute to its satisfaction.
It results, the Circuit Court erred in sustaining the demurrers to the complaint ; and for the error, the judgment must be reversed, and the cause remanded.
