164 P. 574 | Or. | 1917
Opinion by
“The surety, or representative of any surety, upon the bond, undertaking, or other obligation of any guardian, assignee, receiver, executor, administrator or other fiduciary, may apply by petition to the court wherein said bond is directed to be filed, or which may have jurisdiction of such guardian, assignee, receiver, executor, administrator, or other fiduciary, praying to*120 be relieved from further liability as such surety for the acts or omissions of the guardian, assignee, receiver, executor, administrator, or other fiduciary which may occur after the date of the order relieving such surety, to be granted as herein provided for; and for an order requiring such guardian, assignee, receiver, executor, administrator, or other fiduciary to show cause why he should not account and be relieved from any further liability as aforesaid, and that said principal be required to give a new bond. Thereupon, said court shall issue such order, returnable at such time and place and to be served in such manner as said court shall direct, and may in the meantime restrain such guardian, assignee, receiver, executor, administrator, or other fiduciary from acting, except in such manner as said court may direct, for the preservation of the trust estate. If the principal in such bond, undertaking, or other obligation account in due form of law and file a new bond, undertaking, or other obligation, duly approved within the time limited in such order, then said court must make an order releasing said surety filing petition as aforesaid from liability upon the bond for any subsequent act or default of the principal; and in default of said principal thus accounting and filing such new bond within the time limited in such order, said court shall at once make an order directing such guardian, assignee, receiver, executor, administrator, or other fiduciary to account in due form of law within ten days — and if the trust fund or estate shall be found or made good and paid over, or properly secured, such surety shall be discharged from any and all further liability as such for the subsequent acts or omissions of the guardian, assignee, receiver, executor, administrator, or other fiduciary after the date of such surety being relieved or discharged — and further discharging such guardian, assignee, receiver, executor, administrator, or other fiduciary from his position.”
The above section was enacted in 1899, and is substantially taken from Section 812, N. Y. Code of Civ. Procedure, as amended by Chapter 568, Laws N. Y.,
“The surety or sureties or the representatives of any surety or sureties upon the bond of any trustee, committee, guardian, assignee, receiver or executor may present a petition to the court or judge that appointed him, or that approved or accepted such bond, praying to be relieved from further liability as surety or sureties for the acts or omissions of the trustee, committee, guardian, assignee, receiver, or executor occurring after the date of the order relieving surety or sureties, and that the principal on the bond be required to show cause why he should not give new sureties. Thereupon the court or judge must issue the order to show cause accordingly and may restrain such trustee, committee, guardian, assignee, receiver, or executor from acting, except to preserve the trust estate until further order. Upon the return of the order so issued, if the principal in the bond file a bond in the usual form, with new sureties to the satisfaction of the court or judge then, within such reasonable time, not exceeding five days, as the court or judge fixes, the court or judge must make a decree or order releasing the surety or sureties petitioning from liability upon the bond for any subsequent act or default of the principal; otherwise a decree must be made that such trustee, committee, guardian, assignee, receiver, or executor account before the court or judge, or a referee appointed, and that upon the trust fund or estate being found or made good and paid over or properly secured, the surety or sureties shall be discharged from any and all further liability as such of the subsequent acts or omissions of the trustee, committee, guardian, assignee, receiver or executor occurring after the date of his or their being so relieved or discharged, and discharging such trustee, committee, guardian, assignee, receiver, or executor. ’ ’
“The appellant claims that the provisions of the section are mandatory, as the word ‘must’ ordinarily excludes discretion. That word, however, is occasionally used in the code without the imperative meaning which it usually has. (Spears v. Mayor etc., 72 N. Y. 442; Wallace v. Feely, 61 How. Pr. 225, affirmed 88 N. Y. 646.) The provision requiring the court to ‘issue an order to show cause,’ implies that cause may be shown. It is more than a substitute for a notice of motion, for it is a specific requirement in a statute creating a special remedy, of which it is a part. There is no reason why the principal should be required to show cause, if no cause can be shown under any circumstances. When all the provisions of the section are read together, we think the court has a discretion to exercise depending on the facts of the case, and is not commanded to make a decree regardless of those facts. In other words, we construe the expression ‘a decree must be made’ under the circumstances to mean ‘a decree may be made.’ ”
This construction is emphasized by the fact that in 1895 the legislature of New York again amended Section 812 by providing in effect that upon notice and accounting, etc., “the surety * * shall be entitled as
Counsel for appellant cite a number of cases holding under statutes varying in their terms somewhat that sureties have a peremptory right upon petition for that purpose to be relieved from further liability for the acts or omissions of their principals, but in none of these is there a provision requiring the principal to show cause why the surety shall not be relieved, except in the case of In re United States Fidelity & Guaranty Company, 50 Misc. Rep. 147 (98 N. Y. Supp. 217), which, as before shown, depends upon a provision of the. statute expressly providing that they shall be discharged “as a matter of right.” The other cases are: Kempner v. Galveston Co., 73 Tex. 216 (11 S. W. 188); Sifford v. Morrison, 63 Md. 14; March v. Fidelity & Deposit Co. of Maryland, 79 Md. 309 (29 Atl. 521); Cochies Co. v. Ritter, 3 Ariz. 208 (73 Pac. 448); United States Fidelity & Guaranty Co. v. Peebles, 100 Va. 585 (42 S. E. 310). As before remarked there is no provision in any of the statutes of these states permitting or requiring the principal to show cause why the surety should not be discharged, and this differentiates them
The views here announced render unnecessary a consideration of the other questions discussed on the hearing. The judgment is affirmed. Affirmed.