234 P. 181 | Okla. | 1925
This action was instituted in the district court of Cherokee county, Okla., on the 23rd day of February, 1923, by D.O. Scott, guardian of Levi Scott Clark, a minor, as plaintiff, against Mary A. Clark and the New Amsterdam Casualty Company defendants. The plaintiff, D.O. Scott, in his petition alleges that he is the qualified, and acting guardian of the estate of Levi Scott Clark, a minor, that Mary A. Clark was formerly guardian of the estate of said minor, and that the New Amsterdam Casualty Company is a corporation duly authorized and doing business in the state of Oklahoma; that the said Mary A. Scott during the time that she was guardian of said minor by and under the authority given her by the county court of Cherokee county, sold certain real estate of said Levi Scott Clark, a minor, for the sum of $1,600; that said money was paid by the purchaser, Tom Dawes, to J.D. Cox, then county judge of Cherokee county, and alleges *269 that in certain proceedings thereafter had that the question of whether or not the payment of said $1,600 to J.D. Cox, county judge, was a payment at all for the lands sold, since the money did not come within the control of the said Mary A. Clark, guardian, and that in said proceedings the court held that said Mary A. Clark was liable on such payment, and as guardian was required to account for said sum of money. Thereafter said Mary A. Clark under order of the court filed her report as such guardian, and was by the court discharged, and upon the hearing of the final report said New Amsterdam Casualty Company, defendant, surety for said guardian upon an additional sale bond, appeared and contested the said payment and the amount therein shown to be due the ward, or the amounts thus owing the ward, and on said hearing the court found that the guardian was due the said ward the sum of $1,138.30, and ordered same to be paid into, court to the then lawful guardian, D.O. Scott, from which order and judgment of the court the defendant New Amsterdam Casualty Company appealed to the district court, and thereafter, on the 11th day of September, 1922, the cause came on to be heard in the district court, and upon the hearing of same the court found that the said Mary A. Clark was indebted to the ward's estate in the sum of $1,087.76, and directed payment of same to the said D.O. Scott, guardian of said minor, and further adjudged that said payment would be an exoneration of the future liability of the said Mary A. Clark as such guardian and New Amsterdam Casualty Company, surety, defendants in said case. A copy of said judgment is marked as an "exhibit," attached to plaintiff's petition and made a part thereof.
The judgment further provides that it case of an appeal from said district court to the Supreme Court of Oklahoma, a supersedeas bond to stay proceedings thereon be given within 30 days in the sum of $1,500, from which order and judgment of the court, the New Amsterdam Casualty Company excepts and prosecutes this appeal; the said Mary A. Clark does not join in the appeal and neither of the party defendants executed the supersedeas bond as required by the judgment of the district court and the appeal is prosecuted without giving the bond for the purpose of staying further proceedings in the trial court. The plaintiff further alleges in his petition that on the 5th day of December, 1918, the New Amsterdam Casualty Company, defendant made and entered into a bend, being an additional sale bond, with the defendant Mary A. Clark as principal and the New Amsterdam Casuatty Company as surety, in the penal sum of $1,000 to the county judge of Cherokee county, a copy of which is made a part of plaintiff's petition; and is an additional bond for sale of real estate in regular form; alleges that the conditions of said bond have been broken by reason of the default of the said Mary A. Clark, and prays for judgment against said Mary A. Clark in the sum of $1,087.76 and for $1,000 against the New Amsterdam Casualty Company. The defendant, New Amsterdam Casualty Company, in answer to plaintiff's petition interposes a general denial, and further answering admits that Mary A. Clark was the duly appointed, qualified, and acting guardian of the estate of Levi Scott Clark, a minor, and that it executed bond for her as is in said petition stated, and that said Mary A. Clark, as such guardian, attempted to make a sale of certain lands belonging to the said Levi Scott Clark, her ward, for which she received the sum of $1,600, and further answering avers that thereafter said Mary A. Clark, in the exercise of ordinary prudence, deposited said sum of $1,600 with J.D. Cox, then county judge of Cherokee county. That said sum was deposited in a certain bank in the city of Tahlequah, that said bank was a going institution and that a reasonably prudent business man would deposit this sum therein, and that thereafter said deposit was lost by reason of the failure of said bank, and that neither said Mary A. Clark nor the sureties on her final bond are therefore charged with the loss of said funds.
Defendant further avers that an appeal was taken from the judgment of the district court (heretofore referred to) and upon which this action is based, and that said appeal is now pending in the Supreme Court of the state of Oklahoma [since decided,
The appellant discusses in its brief the question of when it is proper to sustain a motion for judgment on the pleadings, and cites the case of Goode et al. v. First National Bank of Roff et al.,
"A judgment on the pleadings is rendered not because of the lack of evidence or proof, but because of a lack of issue of fact. * * *"
This we recognize as a correct rule, and applying this and other well established rules governing the question in hand, we must determine whether or not the pleadings in this case are sufficient to withstand a motion for judgment on same. And in approaching this question the first subject for our determination is, was the suit prematurely brought, which is one of the averments of the defendant's answer, and depends upon whether or not the judgment of the trial court should be stayed wherein appeal is taken to the Supreme Court, without executing supersedeas bond as required by the judgment of the trial court appealed from, and this question has heretofore been determined by this court adversely to appellant's contention.
In the case of In re Epley,
"Execution of the judgment or final order of any judicial tribunal, other than those enumerated in this article, may be stayed on such terms as may be prescribed by the court or judge thereof in which the proceedings in error are pending."
The Epley Case was followed by this court in the case of Palmer v. Harris,
The suit being properly instituted, the second question that confronts us is, Is there an issue of fact joined by the pleadings? The defendant in its answer interposes a general denial, which if standing alone might be sufficient to join issue with certain allegations of plaintiff's petition, but it further answers, and admits the execution of the bond in controversy, and the guardianship of Mary A. Clark, and the attempted sale of certain lands and that she, the said Mary A. Clark, as guardian, received the sum of $1,600 as the purchase price of said lands of her ward, and as a further defense to plaintiff's cause of action avers due diligence on the part of the guardian in the depositing of the money in controversy in the bank that afterwards failed, causing the loss of the money, and in the next paragraph of its answer alleges the facts upon which it bases its contention that this suit was prematurely brought, having been instituted before the appeal to the Supreme Court from the judgment of the district court, affirming the judgment of the county court, had been disposed of, wherein the guardian was found liable for the sum sued for herein, but we have heretofore disposed of this contention by reason of the fact that we find that the failure to give the supersedeas bond left the judgment of the trial court in full force and effect, and authorizes the institution of this suit based on said judgment, although appealed from, hence this averment constitutes no defense.
Defendant next avers that by reason of the institution of a certain suit or action by the minor, Levi Scott Clark, against the county judge, and the purchaser, and this defendant, wherein he seeks to recover the purchase price of the lands from the county judge, and from the purchaser, and prays for an alternative judgment for the recovery of the land, constitutes an election of remedies, and precludes or now estops the said D.O. Scott, guardian of said minor, from further prosecution of this cause against the sureties on the sale bond, based on a former judgment of the county court affirmed by the district court against the guardian of said minor, but we do not understand this to be such an election of remedies as will sustain appellant's contention. It is the pursuit of two concurrent remedies, and is permissible. However, under the general rule of law the successful termination of one would be a bar to the further prosecution or recovery in the other; however, this rule does not necessarily apply: there might be such a set of circumstances and conditions as would authorize a ward to recover money squandered by his guardian and at the same time recover the lands sold, and from which the monies recovered against the guardian were the proceeds or the purchase price derived from said sale; in such event, if the money recovered from the guardian still remained in the hands of the ward, the purchaser from whom the land is recovered might recover the purchase price still in the hands of the ward, or his guardian. Cotner v. Jacobs Grocery,
"Where more than one remedy to deal with a single subject of action exists and they are not inconsistent, all may be used concurrently, but a satisfaction in one is a satisfaction in all."
"Where only one remedy exists to deal with a single subject-matter, but through mistake one not appropriate is invoked, the proper remedy is not thereby waived."
As heretofore stated the general denial standing alone might join some issue of fact, but the matter set up in avoidance of, or as a defense of the judgment by defendant in its answer, destroys the effect of the general denial. Glacken v. Andrew,
"Although a reply, to an answer which sets up a judgment in bar, contains a general denial of the matters set up in the answer, where the reply undertakes to allege acts which are intended to avoid the effect of the judgment as to that particular claim, it is in effect an admission of the fact of the existence of the judgment coupled with the defense that the judgment is inoperative against the plaintiff's claim, and where the affirmative facts set up are insufficient in law to defeat the defense of res adjudicata, it was not error to order judgment on the pleadings, notwithstanding the general denial."
And Chambers v. Kirk et al.,
From a careful examination of the pleadings in this case, we are inclined to the opinion that there was a Jack of issue regardless of the fact that the answer contained a general denial of all the allegations contained in plaintiff's petition. We think the defense otherwise interposed is *272 sufficient to establish the fact that there is no issue raised. The judgment of the county court sued on in this case, and which is the basis of the action, is held to be conclusive against the guardian and the sureties on her bond, and while there are defenses which may be interposed by the sureties, such as payment, denial of the execution of the bond, and denial that the monies with which the guardian is charged with having squandered or being liable for are the monies covered by the bond in controversy, but these defenses must be specifically pleaded, a general denial not being sufficient to join issues on such question, and it is clear from the record taken as a whole that the question of whether or not the money involved and with which the guardian is charged was protected or indemnified by the bond executed by the defendant, New Amsterdam Casualty Company, which they admit they executed, was the sale bond to indemnify or protect the ward against any dereliction of duty on the part of the guardian in handling same, and a general denial in the face of this fact, which clearly appears from the pleadings, obviously would not be sufficient and there is no plea of payment and a substantial admission that the bond given secured the money with which the guardian was charged with, and we find no sufficient error to justify a reversal of this case, and therefore recommend that same be affirmed.
By the Court: It is so ordered.
Note. — See under (1) 31 Cyc, p. 666; (2) 3 C. J. p. 1289; (3) 3 C. J. p. 1293; (4) 28 C. J. pp. 1237, 1294, 1307 (1996 Anno); (5) 20 C. J. p. 8; (6) 20 C. J. pp. 6, 7, 19.
