109 Ky. 31 | Ky. Ct. App. | 1900
Opinion of the court by
Affirming.
This action was instituted by E. H. Steele, guardian, to Napoleon B. Foley and Ida Foley, against John Smith and T. B. Mahan. It appears from the averments of t(he petition that John Smith was by the Whitley county court in February, .188S, duly appointed guardian to the said
The several county courts are given jurisdiction for the appointment and removal of guardians and for the settlement of their accounts, and we know of no law requiring any petition to be filed or summons issued in order to give the court jurisdiction to appoint; and it appears from the petition that the Whitley County Court did appoint Smith as guardian; and by section 2024, Kentucky Statutes, the county court is authorized to remove a guardian who moves out of the State, and section 2026 authorizes a court to remove a guardian for failing to make settlement of his accounts as required by law. We conclude that the appointment of Smith, and his removal and the appointment of appellee, by the Whitley County Court, are all valid, and that the court had jurisdiction to make the several appointments as well as the removal. The fact that these orders and appointments were made is not denied in the answer. Nor is there any denial in the answer that the said wards were residents, at the time of the appointment, of Whitley county.
We do not think that the contention of appellant to the effect that he is not liable because of the failure of the county court to require a report or inventory to be filed is tenable. It was the duty of the clerk to report the delinquency of Smith, and the duty of the county court to
It is further insisted for appellant that the payment of the proceeds of the sale of certain lands' which descended to the infants was illegal because no bond had been executed as required by law, and that a lien exists upon the land so sold for the payment of the sum due to the said wards, and hence they have not been d'amaged by the failure of Smith to account for the money so illegally received; and it is further insisted that the court had not directed rhe sum to be paid to Smith, or, in other words, had not adjudged that the sum sued for was due to the said wards. It is, however, not contended for appellant that the land was in fact not sold and the sale confirmed by the court, nor is it denied that the interest of said wards in the purchase money amounted to the sum sued for. It is true that the money ought not to have been paid to Smith until he had executed the bond required by law in the circuit court. But if he had executed such bond, and had failed to properly account for the money, the appellant would still have been liable as Smith’s surety on the bond executed in the county court. We need not determine what his rights would have been as against the sureties in the circuit court bond if any had been executed, nor is it necessary to determine whether a lien still exists upon the land sold, nor what the right, if any, appellant has to be subrogated or
It is further earnestly insisted for appellant that the appellee could not maintain this action in his own name as guardian; that the action should have been in the name of the infants suing by their guardian. Section 21, Civil Code Practice, reads as follows: “A personal representative guardian, curator, committee of a person of unsound mind, trustee of an express trust, a person with whom, or in whose name, a contract is made for the benefit of another, a receiver appointed by a court, the assignee of a bankrupt, or a person expressly authorized by statute to do so, may bring an action without joining with him, the person for whose benefit it is prosecuted.” It will be seen that a guardian may bring an action without joining with him the person for whose benefit it is prosecuted.
It is insisted, however, that that provision only authorizes a guardian to sue upon contracts made with him as such, but it would seem that the words, “a person with whom, or in whose name, a contract is made for the benefit of another,” would have authorized such suits to be brought by the guardian, and that any reference to the guardian in the section under consideration was wholly unnecessary, if the true construction be as contended for by appellant. It seems io us that the appellee, Steele, undoubtedly had •an interest in the matter in controversy, for the reason that it was his duty to look after the interest of his wards, and incidentally he had a pecuniary interest in the recovery and collection of the money, because he would be entitled to his commission; and, furthermore, he might be liable upon his bond for damages if he failed to use proper effort to protect the interest of his wards, or fail to collect money due them, or in which they had an interest. The petition