118 Ind. 512 | Ind. | 1889
The relator’s complaint is founded upon a guardian’s bond executed by James W. Boyd, as principal, and the appellant, as surety. The surety is the sole defendant ; no process was served upon the principal.
It is said by appellant’s counsel that the complaint is bad, “ because it is alleged that the guardian was appointed by one power, and the exhibit shows that he was appointed by another.” We think this objection is not well founded in fact. The averment in the body of the complaint is, that the guardian was appointed, upon petition, by the court, and the exhibit simply shows that the bond was approved by the clerk. If it be conceded that this was irregular, still the bond is not invalid, for our statute protects the beneficiaries in the bond of a guardian against such an irregularity. R. S. 1881, section 2516 : State, ex rel., v. Britton, 102 Ind. 214.
The second objection to the complaint is thus stated : “ It is bad because it alleges that the guardian never made any inventory of the money or property in his hands, and never made any report to the .court. Thus failing in the first twenty years to file an inventory, and in the last eighteen years to file an account, and showing, too, that the relator had arrived at the age of twenty-five years before this action
A guardian is under a duty to make reports as the law requires, but a breach of this duty does not give a cause of action for money unlawfully converted by him, and neither he nor his sureties can avail themselves of such a breach to defeat a ward, suing for money wrongfully appropriated, upon the ground that the statute of limitations began to run from the date of that breach.
This action is not governed by the provisions of the statute prescribing the time within which actions upon the bonds of public officers shall be brought. A guardian is not a public officer within the meaning of the second subdivision of section 293, R. S. 1881. Owen v. State, ex rel., 25 Ind. 107.
The second paragraph of the answer avers that the cause of action did not accrue within five years before the action was brought. It is clear from what we have already said that this answer is bad.
The third paragraph of the answer avers that the cause of action accrued on the 15th day of August, 1880; that, at that date, the relator was twenty-one years of age, and that this action was not brought until the 27th day of August, 1885. This answer is, for the reasons already stated, clearly bad. The right of action for the conversion of the money
The fourth paragraph of the answer avers “ that any and all sums of money received by James W. Boyd, as the guardian of the relator, were paid to him after his arrival at twenty-one years of age, by his guardian, and were paid out to others for the relator’s schooling and board.” This answer would be good if it ’showed a payment to the relator of the entire sum received, but this it does not do. For anything that appears, only a trifle may have been paid to him. In so far as the answer attempts to defeat the action by averring the payment of money for the ward’s board and schooling, it is bad, for the reason that it does not show that the guardian had a right to pay out his ward’s money for that purpose. It may well be that the ward could earn, and did earn, his own board, or that it was provided for him by those under a legal obligation to provide it. Kinsey v. State, ex rel., 98 Ind. 351, and cases cited. The guardian must affirmatively show that the ward’s estate justified the expenditure of the money for
The sixth paragraph of the answer alleges that Boyd removed to the State of Illinois on the 10th day of February, 1876, and that the relator was at that time seventeen years of age. The ninth paragraph is substantially the same as the sixth. The appellant assumes that these answers are good, because section 2525, R. S. 1881, provides that when a guardian removes from the State an action may at once be brought on his bond. We do not regard this position as maintainable. The guardian might have been sued on his bond when he removed from the State, but the failure of the ward to sue did not justify the guardian in failing to pay over the money in his hands to his ward when he became of age. This duty continued, notwithstanding the fact that suit might have been instituted when the guardian left the State. As-the duty continued, there was no breach until the ward attained his majority. It was then that the present cause of' action fully accrued. But, conceding that some cause of action accrued when the guardian removed from the State in, 1876, yet this action was not barred, for it is not an action based upon the removal of the guardian, but upon his failure to pay over to his ward the money which belonged to him.
The eighth paragraph of the answer alleges that the guardian filed an affidavit prior to his appointment, wherein he stated that the real estate of his ward was worth $1,200, and was of the rental value of $65 ; that he had no personal estate ; that the clerk, by mistake, fixed the penalty of the bond at the sum of $2,400. Prayer that the mistake of the clerk be corrected. The pleading is not good. If there was a mistake it was a mistake of law, and such mistakes can not-be corrected by the courts. The case is not like that of individuals making a computation of amounts, but the case is-that of a public officer who has erred in discharging an official duty requiring the exercise of his judgment. But we hold that even if the mistake were of a character that could be-
The appellant’s counsel argue that, because Boyd was not served with process, the trial court erred in admitting any -evidence against their client. We can not assent to this doctrine. The relator had a right to a judgment against the surety, although the principal was not served with process. The failure to get service on the principal does not defeat an action against the surety. The bond is joint and several and the relator might have sued the surety without joining •the principal.
The guardian testified that he received the money with •which the court charged the appellant, and this testimony fully supports the finding. The counsel assume that the guardian could not, under the pension laws, hav.e received the amount he testified that he did receive, because the pension allowed would not equal that amount, but this argument assumes that no arrearages were collected by the guardian, and in the face of the positive testimony of the guardian that he did actually receive the sum he names, this assumption can not be maintained.
We are satisfied from an examination of the evidence that the damages were assessed on an erroneous theory and that there is an error in the amount of the recovery. It is conceded by appellee’s counsel that the only breach relied on is the failure of the guardian to account to the ward when he
The courts are careful — and so they should be — to protect the interests of wards, but it is not to the interest of wards to*
Appellee’s counsel affirm that the trial court had authority to award exemplary damages, but under the rule declared in State, ex rel., v. Stevens, 103 Ind. 55, this position can not be maintained. In that case it was held that a definite penalty might be designated, but that an unrestricted right to assess exemplary damages could not be conferred upon the courts. In cases of this class, if there is a violation of law deserving punishment, the guardian should be prosecuted for a crime; if there is not such a violation, then his sureties should not be punished. It is doubtful whether, in any case, a surety guilty of no personal wrong can be punished, for all that should be required of him is that he make adequate compensation to the injured party.
Judgment reversed.-