54 Ga. App. 123 | Ga. Ct. App. | 1936
The Citizens and Southern National Bank, as guardian of the property of Julian W. Marshall, filed in the court of ordinary its petition in which it alleged that the ward had come of age; and that it had faithfully administered the trust, and was ready to make a final return and to turn over to the ward all money and property belonging to him. It prayed for citation to issue for settlement of its accounts as guardian, and for letters of dismission from the guardianship. To the citation the defendant filed an answer objecting to the allowance of commissions and to the discharge of the guardian until a full accounting had been made with its ward. The substance of the material allegations of the answer was, that the bank, as guardian of the ward’s property, had tendered to him five bonds of a church for $1082.50 each, due in 1948, with coupons attached, and five first-mortgage bonds of a college for $1000 each, due in 1948, with coupons attached; that said bonds were not the equivalent of cash, and if the bank purchased them the purchase was unauthorized by law, and the retention of them was illegal; that if they were purchased as alleged, it was without notice to him, without the appointment of a guardian ad litem to represent him, without notice to or service on his next of kin, without notice to the guardian of his person, and without authority of a proper order from the judge of the superior court; that he reached his majority on January 9, 1935, and was entitled to the amount paid for the bonds in cash, with interest from the date of purchase; that the commissions charged by the bank in its final return should not be allowed, for the reason that as guardian it had failed to perform its duty to the ward, in that it had failed, after repeated requests, to furnish sufficient funds to pay, during the months of 'March, April, and May, 1933, the tuition and board of the ward at the Citadel, a school in Charleston, S. C., in which the ward had enrolled, or to furnish him with the necessary school expenses for his maintenance and education, and he was obliged to discontinue
The bank demurred generally and on several special grounds. The defendant amended his answer, alleging that the college bonds and the church bonds were purchased without any legal order of the judge of the superior court, but if any order was signed by the judge of the superior court it was without any notice or service on him, a minor over fourteen years of age, and without any notice or service on his next of kin, and without any notice or service on the guardian of his person, and if any order was granted it was without the appointment of a guardian ad litem to repre
To the answer as amended the plaintiff demurred generally and specially on a number of grounds which will be specified in. connection with the rulings thereon. The court sustained the demurrer and struck the answer as amended. Evidence was introduced by the plaintiff, consisting of its annual and final returns, a copy of the petition to the superior court for leave to invest in the bonds, with the order of the court thereon, and a copy of the petition to the ordinary and of the order thereon allowing the substitution of the church bonds. The defendant proposed to introduce evidence as to the facts alleged in the stricken answer, which
The first question to be considered is as to the validity of the order of the superior court authorizing the guardian to invest in the college bonds and the church bonds. It is not questioned that' the property guardian is the proper person to file an application for an investment in securities which requires the sanction of the court. When such an application is filed by the property guardian, the court has jurisdiction. Generally no service on anybody is required, as no person beside the ward is interested, and he is represented by the guardian. The Code, § 108-417, relating to investment of trust funds, has been held to apply to funds held by a guardian. Brown v. Wright, 39 Ga. 96 (3), 101. Section 37-1303, which provides that in applications for investment of trust funds where any person is interested besides the applicant, notice to such person must be shown or its absence accounted for, does not apply to this case, because the ward is the real applicant though acting by guardian. Section 37-1304 provides that if minors are interested, “and they have no guardians, guardians ad litem’ shall be appointed and notified before the cause proceeds.” The implication is that a guardian ad litem is not necessary for a minor who has a guardian. See Callaway v. Bridges, 79 Ga. 753 (4 S. E. 687); Sanders v. Hinton, 171 Ga. 702, 709 (156 S. E. 812); Ethridge v. Pitts, 152 Ga. 1, 16 (108 S. E. 543). However, another Code section provides that whenever a minor is interested in any litigation pending in any court in this State, and has no guardian, or his interest is adverse to that of his guardian, “such court may appoint a guardian ad litem for such minor, which guardian shall be responsible to such minor for his conduct in connection with such litigation, in the same manner as if he were a regularly qualified guardian.” § 49-111. .Here again the implication is that a guardian ad litem need not be appointed for a minor who has a regular guardian, except in case the interest of the minor is adverse to that of his guardian. Even in this case, where the conflict of interest does not appear on the face of the proceeding, the judgment would not be void for want of a guardian ad litem. Conceding that the answer shows that the guardian was more or less interested in the sale of the bonds, and that this
What has been said in regard to the judgment of the superior court applies also to the judgment of the ordinary in allowing exchange of the church bonds. The court of ordinary is a court of general jurisdiction, and its judgments are not subject to collateral attack for error or even for fraud. Bowen v. Gaskins, 144 Ga. 1 (85 S. E. 1007); Laramore v. Dudley, 145 Ga. 102 (88 S. E. 682); Copelan v. Kimbrough, 149 Ga. 683 (102 S. E. 162).
No fraud is alleged in this case, if for no other reason, because there is no allegation that the defendant sustained any loss through the transactions of which he complains with reference to the bonds. He has avoided any allegation as to the value of the bonds when they were purchased or as to their present value. Grounds 6, 7, 8, 9, and 10 of the demurrer to the amended answer make the point that there is no allegation that the defendant suffered any loss in the transactions complained of. These grounds were properly sustained. The defendant asks for an accounting with his guardian, and sets up no item of indebtedness or money damage against the plaintiff. The defendant stands squarely and solely on his alleged right to reject the bonds and to receive cash in lieu thereof. Paragraphs 6, 7, and 8 of the demurrer relate to the allegations as to the exchange of bonds. Paragraph 9 demurs to the allegations as to the dual position of the bank as guardian and as trustee for bondholders, etc.
Paragraphs 11, 12, and 13 of the demurrer to the amended answer attack the allegations as to the relations between the bank and the Citizens and Southern Company, from which the bonds were bought. It is alleged that the stockholders of the bank were likewise stockholders of the company, that the two corporations had common officers, that the bank owned and dominated the company, and that the company was an agency or department of the bank. It is alleged that the company had its own charter. It is not al-. le'ged that the bank owned any stock in the company. It was not denied that the plaintiff was a banking corporation existing under the banking laws of the Hnited States, and the company in its charter had a license from the State of Georgia to exist and operate
Paragraph 14 of the demurrer attacks the allegation that the guardian failed to use sound judgment and ordinary care in buying the bonds. As these investments were approved by the superior court, they can not be called in question in the present proceeding. This power of the superior court as to approving trust investments is unlimited as to the kind of securities which may be approved. If the judge makes a mistake of judgment and approves an undesirable security, there is possibly no remedy for that. Paragraph 15 demurs to the allegation as to the "reduced value” of the bonds, on the ground that it should be stated what the reduced value was, and what loss the defendant suffered. These grounds were properly sustained.
The original answer alleged that the commissions charged by the guardian, amounting to $830.27, should not be allowed, because the guardian failed to furnish the ward or the authorities of a school in which he had enrolled with sufficient funds to pay, during the months of March, April, and May, 1933, the tuition and board of the ward; and that he was obliged to discontinue his education and leave the school on account of his inability to pay his board and tuition, through the neglect of the guardian to furnish the necessary funds, although, according to a return filed in the court of ordinary, the guardian, on April 4, 1932, transferred from the income account to the corpus account the sum of $565.31, which could have been made available for the purpose of paying for his education and maintenance at the school. These allegations were challenged only by general demurrer. The ward had been placed in the school, presumably with the concurrence of his guardians, and while pursuing his education there he was abruptly forced to leave by the refusal of his property guardian, the plaintiff, to pay for his board and tuition. It is a serious matter to take or force a young man away from a school in the middle of the term or before he completes his course. It could result in an injury inesti
Judgment reversed,.