*1
pleading
In the absence
appellee’s
proof showing good cause
the six
file his claim within
failure to
with
period,
district court was
months’
hear and determine
out
Ins.
Accident
Wiggins v.
claim.
Standard
579; Mor
(Tex.Civ.App.) 61 S.W.2d
Co.
Casualty
(Tex.Civ.
gan v. Petroleum
App.)
court will be
manded.
HEYN BONDING v. MASSACHUSETTS INS. CO.
No. 12262. Appeals Texas. Dallas.
Court Civil
Oct. 1937.
Rehearing Denied 1937. Nov. *2 Company, surety on the official bonds county judge Hon. in Tex., alleged and for for Dallas nonper-
negligence in above bounden formance of his official duties in reference ward, in resulting to the estate of said $7,000. loss to said estate in the sum of The negligence suit based failing perform of said in R.S.1925, prescribed by-article 4141, fixing liability county judge’s .on neg- for resulting loss to the ward due to ligence annually county judge failing of said of his examine into the condition estate, solvency sufficiency bond, guard- requiring ian to execute another bond in accordance law; and, negligence further judge failing guard- to cite the then re- ian ports, Thomas V. Furlow to file annual 4227, R.S., required by guardian and to fine said and remove reports, as him for his failure to file such (as articles 4233 amended Ann.Civ.St. arts. [Vernon’s 4234]). The cause was submitted to the court jury, resulting judgment without a for appeals presents defendant. Plaintiff assignments, number . and defendant urges assignments counter on the action holding the trial the statutes under consideration constitutional. pertinent statutes under li- sought are as follows: ability is guardian “Art. 4141. The bond of the estate of a ward shall be the estimated to double value of the property belonging personal be fixed plus reasonable amount to at county judge, to cover discretion rents, revenues and income derived from renting belonging or use of real estate payable Such bond shall be to such estate. approved by county judge pend- guardianship where such guardian ing, and conditioned that such faithfully discharge the will of the estate of such ward accord- Berwald, Elihu E. R. Rosenfield and Max law. It shall be the of such ing to Dallas, appellant. both of examine into the Brundidge Burgess, L. CJhrestman the estate of the ward and condition Dallas, Elliott, appellee. all of E. guardian’s bond, of such the to at require such time BOND, Chief Justice. ample bond is not appear that such securi- Henry Heyn, protect such estate and the inter- Furlow, estate of V. to execute another of his ests in accordance mentis, instituted this suit case, with law. he Bonding cases; Massachusetts & Insurance notify guardian as in other shall imprisonment loss to the tenced damage and should result a term years. through estate of ward county judge such du- When, “6. he if be the ties, county judge liable on his person, cruelly ward treats waird, bond, payable neglects to educate and maintain the *3 neg- to the loss due to liberally as ward as the means of such ligence.” and the circumstances of case demand.” re- fails to guardian “Art. If the 4227. February Fur- On V. Thomas account, shall be cited he turn annual person unsound adjudged low was a next term return same at to mind, county, by court Dallas for such show cause and to appointed and Frederick L. was Furlow to return guardian If fails failure. person by guardian of estate and cited, so or fails to being account after Simpson, judge then Honorable Cecil failure, may he good for such show county. Frederick Furlow Dallas L. exceeding five by fined the court not be duly qualified and execut- as dollars, county; for the use of the hundred $1,000. ed bond in sum a he liablé for and and his sureties be Simpson January Judge was On any imposed damages fine sustained county judge of Dallas coun- succeeded as by reason such failure.” ty by who held said Hon. Arch C. Guardians shall be removed “Art 4233. 1921, continuously years office cases, notice, following without in the at 1923, 1924, 1922, been re-elect- regular court: term years him- ed for the last two to succeed they return, When fail to within “1. Judge self. Allen executed two successive thirty qualification, days an inven- after Bond- with the Massachusetts tory property and list of claims of surety Company as & Insurance there- on, penal the estate which come to their knowl- each ex- sum edge. pressly payable treasurer Tex., county, provided by Dallas as they required give “2. When have been 1928, R.S., and conditioned that the bounden bond, a new and fail to do within the so Allen, county judge of Dallas prescribed. time faithfully “shall dis- they “3. When have removed from the required charge all of the duties of him State. law aforesaid and shall process “4. other When notices or person pay over to or officer entitled be cannot served them on ac- receive all monies that come being their count whereabouts un- ” * * * county judge. his hands as known.” Frederick L. Furlow left the state of A guardian may “Art. 4234. be removed 19, Texas, September 1922, on or about the court its own motion or on the knowledge without the any person motion ward, interested time, since said has remained out of the or his being after cited 1924, except day state for one his where- answer: unknown. He remained abouts any “1. When he fails to return account of said V. Furlow August until any which returned was- removed provision this title. Alexander, the successor of Allen as obey any When he fails to proper “2. county judge. During guardianship, judge. or order Frederick L. Furlow collected for his said good When there is $10,415.22, “3. cause to believe the sum of out of which he misapplied, embezzled, he has that or unlawfully re- misapplied' $9,000 diverted and moved, or is about misapply, benefit, embezzle $7,000 use to his own of which property remove the State the misapplied diverted and was so charge, $2,000 committed to years there- 1923 and during the of. August 1926. 1925 and .On appointed proved appellant qualified duly “4. he is guil- When have been said neglect guardian of gross mismanagement ward. performance of his duties as that, Fred- is admitted record It guardian. notoriously insolvent, erick L. Furlow When he becomes adjudged .“5. unsound mind or is an Thomas V. Furlow habitual continuously becomes an drunkard or is sen- and has been insane provisions in of in article of the Con- as such since his conviction insane stitution, provides powers dead, having which “The Judge Allen is of the State Texas filed Government suit was January died 1933. depart- shall be divided into three distinct November 1934. ments, each of which shall be confided that no is further admitted separate body magistracy, wit: L. Furlow of Frederick one; Legislative Those which those filed, except original bond none $1,000 another, which are Executive to and those annual February, no another’; Judicial said person, persons, being of or collection of made, show- no orders of record none departments, one of these shall exercise by Judge Allen ing any action taken any power properly attached to either require him Or remove the *4 others, except in the instances here- security. It is also to furnish additional ; expressly permitted” and also violative admitted, that there is no record of citation provisions 15, 17, 5, 16, in article §§ having ever been out of the issued 18, Constitution, creating county, citing said court of Dallas prescribing jurisdic- court and its contempt Frederick L. Furlow for of court tion, appear it is in which reports for failure to file annual provision impose upon the no is made to 1922, 1923, 1924, respectively; judicial other non court duties. proceedings that there is no record of hav- words, the is that there is no contention during been instituted such time provision imposing constitutional county hold said and his liable sureties duty judge the executive of mak- damage, for loss or sustained said prescribed by ing investigations, as said proceeding guardian’s reason of the to file statutes, upon' base accountings; and that there is no court; judicial powers in county that the any proceedings in- record of court, in view of the above articles court, stituted Constitution, (1) pow- include: office, tenure of Allen in to remove facts; power (2) er to hear to decide the said for failure to render such by pleadings; (3) power issues raised reports. annual law; questions (4) to decide that, further admitted in the record power judgments. to enter and enforce on March filed an Frederick L. Furlow Thus, judicial power of the estate of only judicially court is to hear and deter- ward, showing guardian $1,088.85, that the said had respect to the mine facts condition on in cash the sum hand be- wards, estates ciency and suffi- Furlow, longing to the estate of Thomas V. bonds, protec- and that duly approved on March wards, properly tion of estates of when accounting; said and that brought before court for review. April there was also filed in constitutionality opinion, the In our guardianship petition proceedings, said free from doubt. Article said statutes is per to said for allowance of $40 1, supra, providing for the division § support month for and maintenance of his into three de- power government ward, in which is recited “that the or collection partments, him, paying United States Government is depart- one of these persons, being of guardian of such the sum of $100 any power properly- ments, shall exercise compensation, month as and that un- departments, either of the other attached is limited holding, expects der a recent same to be expressed words: “ex- $57.50,making increased a total of $157.50 expressly per- herein cept in the instances paid to be to him guard- as such vests in the mitted.” Article county § ian”; that, April 18, 1921, Judge general of a court the Allen entered an order the minutes of his provides coun- probate that the court and granting court the allowance in accord- “ * * * appoint guard- court petition. ance with above idiots, lunatics, minors, persons non ians of drunkards, entering compos Before plaintiff’s assignments, into a- mentis and common considera * * * executors, tion of we will settle accounts first n considerthe de- assignments appellee. appertaining to all business The transact n contentionis based on the n statutesin minors, idiots, lunatics, per- theory persons, that the ceased question impose nonjudicial and common du mentis sons * * * drunkards, provided by judges, ties on law.” and are violative Legis- permitted district “The exercised and 22, provides Article § (article 5, supra). courts We overrule gen- power, by local or § shall have lature appellee’s attacking the change counterassignment, law, increase, diminish eral constitutionality of Coun- the basic jurisdiction of the civil and criminal * * * this suit. Obviously, article ty Courts.” division supra, providing § foregoing provisions Under the depart- three power- ments, into government statutes, obviously it is the of divi- the declaration has limited judges ex courts “except instances sion the words , amine into the condition of the estates Thus, permitted.” herein bonds, Yards, the sufficiency (article power grant of given if are not 16), conferring that court § ample security estates and matters, probate general jurisdiction of therein, wards’ appertain- right to transact business guardians to bonds in ac execute other persons, empower ing to insane law; further, county cordance with increase, (article S, 22) Legislature judges compel guardians change jurisdiction of the diminish or county reports to return of annual provisions are some of duty imposed (a under article expressly permitted” “instances 4225), contempt to exact fines for *5 the constitutional basis for enactment of statutes guardians on damages and assess 4141,4227, 4233, (articles and their bondsmen for upon supra), imposing judge, the of duties; duty further, it is the county court the examine county judges guardians of to remove wards, into the condition the of estates of they as give have failed to sufficiency of by law, guardians or when such bonds, require ample security state, have absented themselves from the estates, supervision and to exercise accounts, have failed to file annual over the ward’s interest. We think these obey proper have orders refused to powers clearly purview come under the county judge. Manifestly, the man above ' the Constitution. . datory imposed upon duties are In al., al. Alexander 122 minors, et v. et judges by inability reason of Jones Tex. Sharp for idiots, lunatics, mentis, S.W.2d persons Appeals, clearly Commission of demon- and common drunkards to take care courts, strates that proper legislative under per their sons interests. The own welfare of grant, may perform nonjudicial; functions laboring disability under such has that the statute there under consideration always deep been a matter of concern (article 5139, R.S.)., imposing nonjudicial the state. This has in a manner made state upon duties over supervision district county judges agents to con its fiscal courts minors, to obtain information con- persons custody fide estates of such cerning minors, the welfare of such prudent persons, and safe and have custody, direct their provision did violate carefully safeguards thrown around such Indeed, of the trustees, Constitution. require them a faithful as to Appeals Commission of in that case had discharge of their The statutes trust. under consideration the grant constitutional compelling guardians give. solvent and power courts, imposed by to district as equal bonds in amount sufficient double Constitution, of the which personal prop the estimated value of the provides that the wards, district court shall have' erty belonging their to file an jurisdiction general control over nual in elicit truthful regulations “minors may under such as be formation to the condition of such es as prescribed by comparison law.” A sec- tates, proper obey Constitution, tions 8 and art. always judge, and to with remain discloses that courts are vested jurisdiction in the of such court or the same kind and protection character of per disabled persons over insane given district courts are sons and their estates. These duties are minors; and, by analogy, mandatory; performance the failure of nonjudicial imposed on penal punishment courts carries with it and civil by the statutes under liability, consideration are and removal of such fiduciaries. permitted by (article 5, So, also, statutory the Constitution is above duties im 22), delegates upon county §§16 and posed judges such coun- force effect, judges courts and thereof performance functions as se, is for which such text statement Tex.Jur. judges official bonds is: and their “The obligors are amenable official bond which negligence. pursuant liable for loss been executed to statute are presumed to have known terms stipulation of agreed appears statute accordingly. and to have contracted facts, executed L. Furlaw that Frederick * * * The upon which bond penal sum of guardian’s a relates, rests and to which it a have specify officer, become person of only the part though of it to the same extent insufficiency of such (article 4140) and the incorporated instrument, and should expressly called to the bond was regardless read of the intention attention parties”. supported text March accounting Indemnity numerous authorities. In Globe then on had disclosing al., Co. v. Barnes et 288 S.W. $1,088.85 cash, belong- hand the sum of Judge Speer, Ap- of the Commission of Notwith- ing of his ward. the estate peals, discussing question, this said: impos- (article 4141), standing statute “It is well settled where a bond duty to make part executed with the intention equal to double the in an parties require- comply with the personal property estimated value statute, ments of a the terms such stat- impos- belonging to ward’s such, ute obligation, will become a duty upon judge to ing the were, by incorporation though as it even bond, the posting of such a the bond itself be silent as to otherwise approved .the statutory obligations. United States com- no order March .but Fidelity Guaranty v. Henderson bond. execute such pelling Furthermore, County (Tex.Com.App.) 276 S.W. county judge’s attention *6 1119; (Tex.Com.App.) Id. 276 S.W. Smith the insufficiency of the again called to Fidelity, etc., v. (Tex.Com.App.) 280 by petition by the S.W. 767.” 18, 1921, for an April guardian on such month, pleadings it $40 in which contention is made allowance court, by appellant’s was then so that such found the trial was disclosed applicable by $100 cause of is ward the sum action barred receiving his limitation, compensation legal from the United statutes of the title expected county it to be to the cause of action was in the government, and States express allowance was $157.50. treasurer of Dallas increased payee bonds, judge, ap- by but granted order official his,ward the pellant only beneficial no additional bond were owners, they may and interest protect the estate thus guardian to whatever purely equitable have in such is of said ward. by could asserted only be that article will observed treasurer. only imposes supra, well-defined not judge, settled, think, but It is we well liability. equitable The official the holders titles in creates civil contracts county judge placed made answerable footing is same that of titles; legal in the holders where a judge’s dereliction cause for the is to the holder of Judge Allen action barred as such performance his duties. title, beneficially legal interested took the those official bonds and executed his barred, disability. though likewise under knowledge of the office full oath of 719; statute, statutory 37 Susan H. Collins v. E. Mc and all of that existence C.J. al., Carty responsibilities imposed et 68 Tex. 3 on him S.W. 2 duties and 475; thus, Am.St.Rep. al. surety Smith et v. Price et county judge; (Tex.Civ.App.) 230 responsi al. S.W. Mat accepted the on his official bond Darnell, Tex.Civ.App. 27 al. v. thews et and vouched for the bilities of trust 890. But this 65 S.W. rule performance those duties. The faithful legal application when title is vested pursuant executed official bonds were que -trust who labors under in a cestui obligations, thus the terms such disability. The statutes of limitation which liability relating to the the. guard might against bar a trustee or be a obligors them became a of the bonds legal holding title the beneficial ian selves.
267 equitable owner, by court, will not constitute were entered Judge presiding. applications bar Allen such cestui. 127 pensions passed widow’s juvenile upon. were 528 already out, official pointed As lunacy and 540 cases cases were Judge expressly made bonds of payable Allen were tried Judge Allen. There were Indeed, to the treasurer. applications for admission to tuberculosis primarily bonds in terms were sanitariums, applications each of which thus, county; benefit of the signature Allen any legal treasurer held the cause title to places. three were 19 Inheritance There. arising action benefit thereunder for the Reports presented Tax signed to and therein; persons or officers named n Allen 1924. There but, bar, as in the case at pending Probate cases supra, express terms, provides that took office were filéd damage “should of or loss to the estate result 9,411 probate tenure of office. orders were through negligence addition, years. entered in the four such ap- 904 annual and final accounts were [enumerated], county judge shall be proved passed and 899 claims on.” From bond, payable liable on his official facts, these related the conclusion was ward, an loss reached trial that'because to such negligence”; obviously, provi burdensome onerous and duties thus sion of the statute makes the whose imposed, county judge was unable dissipated estate has been due to and lost relating attend to his other duties to wards’ payee, estates. bonds, adoption, in therein, as if written is ex We presented by thus the "loss think excuse the ap- pressly “payable testimony and above to such ward” affords no defense to pellant’s vests in him the legal title of action. The negligence cause Therefore, cause predicated of action. V. of the county judge is Furlow, being legal vested with title of that which the law action, precluded by says not performed. pre- must be It does not statutes of limitation of his question on account sent a prudent whether disability, statute, admitted and is entitled to sue obeyed man would have through duly appointed guardian. performed energetic man could have Every person those duties. who ac- Appellant assigns error the cepts county judge office law *7 permitting, action of the trial in over court imposed upon all the burdened with testimony objection, the introduction of officer, obligated such per- thus detailing the amount of work and nature form all of or suffer the con- Allen, performed by Judge of duties from sequences responsi- for his failures. The following Jrial county judges bilities and welfare the interest findings “During résumé of fhe facts: lunatics, minors and like year four tenure of trust, go unto with the emolu- County presided Judge, over position, accepts ments of the the and he who Court, Court, Commissioners’ held Probate responsible for one is the other. We Court, Court, in Lunacy dition, ad Juvenile testimony think the adduced is not ad- sundry carried on the other duties missible, presents legal excuse for correspondence heavy incident to nonperformance clearly of- County. County Judge’s officein Dallas against protective fends statutes with The of work and volume number of reference to the welfare of es- wards’ during year entered the four tenure of liability tates and the resulting for losses. approximately C. were Arch Appellee escape liability cannot for. such year. each The records show statutory duties, County said four that spent inability of its bounden because $14,713,003.46, ap requiring the such other official functions. proval the Commissioners’ Court. $4,625,000.00 Therefore, said, in- de aggregating Bonds what from we have $1,000 each, fully developed, were issued case judg- nominations County, each of which ment bond of the lower court should be reversed County Judge. Com and signature appellant, here rendered favor of met, regular meetings appellee Court missioners’ for the sum of cent, conferences, 1,096 times; with 6 thereon approved by the below; report it the county judgment of date n that showed judge, which is so ordered. on hand sum guardian then had rendered. Reversed and $1,088.85, cash, the estate belonging to' being then he was that YOUNG, J., sitting. from-the paid additional $100 expected it government and Rehearing. United States Motion On per month. $157.50 to be increased to re Appellee filed motion $1,000 posted Thus, obviously, the original in our hearing, suggesting guardian was insufficient incorrectly stated opinion, we The the interest judge $1,000 said ward. “insufficiency (the guardian’s) bond known, that the knew, have should atten was called insufficient, accounting, guardian’s, tion negli- security was additional ”* * * March filed on failure, se, along with gence per and such “agreed stipu appears from the that such duties, as re- of official the other failures did not intend facts-.” lation of We pointed out in the record and flected n convey agree that there was the idea opinion, the direct original our at ment Allen’s effect loss. pf the ward’s proximate directly called insuffi tention mentioned; corrected original opinion is
ciency the date of the bond on above; motion for suggested but, that, opinion, particulars re the record our rehearing overruled. flects to his that was called attention