Hendry v. Hurst, 22 Ga. 312

Hendry v. Hurst

22 Ga. 312 | Ga. | 1857

By the Court.

McDonald, J.

delivering the opinion.

[1.] The record does not disclose the decision of the Ordinary on this case, when before him. We presume, however, that he allowed the account of the guardian, and considered the vouchers sufficient to sustain it, as the counsel for- guardian in his argument insisted that the Court below ought to have permitted the account and vouchers to have been submitted to the jury, as, when passed by the Ordinary, the vouchers weroprima facie evidence of the disbursements charged to have been made. Be that as it may, when the case was about to be submitted to jury, “ the counsel for the guardian offered the account current and vouchers returned to the Court of Ordinary as the case and pleadings for trial.” The Court rejected them, and this ruling is the first ground of error alleged in the record.

The appeal from the decision of the Ordinary, brought up the entire case and it ought to have been presented to the jury as it was to the Ordinary. In all cases the guardian making his return should lay his account before the Ordinary, plainly setting forth, with sufficient certainty, his charges against his ward. This account is the case he should prove. The vouchers are his evidence to support it, and they should be closely examined, and, if not satisfactory to the Ordinary, *317ought to be supported by other proof. So, in the Superior Court on appeal, the same course should be pursued. The vouchers, on such appeal, are entitled to no weight as evidence, on the score that, on the case appealed, the Ordinary allowed them. The judgment appealed from must be affirmed before it is entitled to any consideration as evidence, and it being a judgment upon the law and evidence, it must be reviewed upon the law and evidence. The Court below ought to have allowed the account to go to the jury, as the matter which, with the caveat, made up the issue to be tried by them. The vouchers formed no part of the issue and when offered as a part thereof, ought to have been rejected.

[2.] The vouchers to sustain the charges in the guardian’s account for clothing, schooling, tuition and board, ought not to have been rejected on account of their generalness. They embrace charges from the 1st of January, 1848, to 17th April, 1855. They show great carelessness and negligence in the mode of keeping the accounts, but this is not a reason for rejecting them altogether; accounts thus kept, ought to be strictly proven by testimony, to support the charges made, to-wit: that the clothing, schooling, tuition and boarding, were furnished in accordance with the charges, and that the charges are reasonable and suitable to the circumstances of the ward. Guardians should keep accurate accounts and make regular returns, and in all cases where they do not, and are unable to prove the actual amount paid under the above rule, they ought to be restricted to the lowest amount the law would authorize them to charge. The guardian’s own receipt to himself, furnishes not the slightest evidence of this. It is his own bare statement in his own behalf which is inadmissible. He ought to prove the furnishing, and a quantum meruit, (if unable to prove the actual amount paid,) and that the circumstances of the ward justified the charges.

[4.] The depositions of Robert and James B. Peacock, ought to have been read to the Jury. The charges in the account were sufficiently special to apprise the defendant’s *318in error of: the nature of-the.demands: set up,by the guardian. It is by the evidence of others that he must prove them. If , the testimony of-.the persons -with whqm the ward boarded, and- the teachers to whom the tuition money was paid, can , be obtained, it is the best evidence. If that cannot be obtained, the next best evidence.must be produced. The evidence rejected ought to have been -submitted to the consideration of the jury. The witnesses testified that the value of the-ward’s board with the guardian was fifty.dollars per year, and that she lived at his house six or seven years, and was -clothed.and supported by .him. To this extent the evidence was certainly admissible.

[5.] The Court below rejected receipts given by attorneys for professional services rendered the ward’s estate, on the ground that-thpy did not specify the services rendered, and because’it was alleged, that the said services were rendered the guardian in his defence of a suit on his guardian’s bond. There is nothing in the record to justify the second ground of objection, .and, it. will not be considered. The receipts ought not only to have specified the services rendered, but if the ward required it, there should have been evidence that it was a proper charge against her. The judgment of the Court upon a contested return to the Ordinary, is as conclusive upon the parties, as any judgment, and the proof ought to be such as would be necessary to sustain the charges if-attempted to be set up in a Court of Chancery. Indeed whether contested or not, there ought always to be satisfactoiy proof that services charged against a ward were rendered for his or her benefit, and- that the charge is reasonable.

[6.] It was not -error in the Court, to permit the party to allow, in favor of the guardian, items in his account not'allowed by the jurju It was a voluntary abandonment of a right which, by no possibility, could prejudice the other party. The non-allowance of commission does not seem to ■ have been a ground for refusing the motion for a new trial.

The. judgment .of the Court below must be reversed on *319the ground that the Court erred in excluding the evidence of Robert and Janies B. Peacock. It was the duty of the Court and jury on the appeal to exercise all the duties and powers of the Ordinary, to hear all the evidence legally offered for or against the account as charged, admit it, or disallow it, or reduce it, accordingly as the evidence demanded the one or the other.

Judgment reversed.