54 Ind. 378 | Ind. | 1876
George W. Barnes was duly declared, by the verdict of a jury, to be a person of unsound mind, and Levi W. Hudson was duly appointed guardian of the person and estate of said George, accepted the trust, and gave bond, with Calvin ~W. Hudson and Sylvester Deputy as his sureties, conditioned according to law. By order of the court, the said guardian sold certain lands belonging to his ward, collected the money, and failed to pay it over, but resigned his trust as such guardian. Afterwards the ward was duly declared, by the verdict of a jury, to be of sound mind. The complaint avers that said guardian converted the money so collected to his own use. After the ward was declared to be of sound mind, he brought this action on the guardian’s bond.
A demurrer was filed to the complaint alleging, as grounds,
1. The insufficiency of the facts averred; and,
2. That the plaintiff' has no legal capacity to sue.
The demurrer was overruled, exceptions taken, and proceedings had which resulted in a judgment against the appellants.
The only assigned error in this court is overruling the demurrer to the complaint. The appellants make the following objections to the complaint:
1. That the complaint does not sufficiently entitle the cause as the statute requires.
If this omission ever was a demurrable defect in the complaint, it has been supplied by a complete record brought before us by a certiorari.
This is not necessary to be averred in the complaint in an action against the guardian for converting the money, to his own use, which belonged to his ward. Whether it might be made matter of defence, is a question not before us.
3. That there is no averment in the complaint of a sufficient demand before suit.
It was the duty of the guardian, “ at the expiration of his trust, fully to account for and pay over to the proper person, all of the estate of said ward remaining in his hands.” 2 R. S. 1876, p. 589, sec. 9, clause 4. No demand, therefore, was necessary.
When money is payable at a fixed date, or upon the happening of a certain event, no demand is necessary before suit; and an action may be maintained, on a guardian’s bond, against the guardian and his sureties, without previous demand. Voris v. The State, ex rel. Davis, 47 Ind. 345. See also Fuhrer v. The State, ex rel. The Attorney General, decided at the present term.
These are all the points aimed at the complaint by appellant. In other respects we do not examine it.
The judgment is affirmed, with costs, and three per cent, damages.