114 Mich. 567 | Mich. | 1897
This is an action on a guardian’s bond. Nehemiah E. Cheney died, intestate, on March 7, 1880, leaving a widow and two children, — May Cheney, since married, and referred to in this record as May Cheney Hinman; and Elsby Cheney, then aged three years. Amherst B. Cheney was appointed administrator of the estate of Nehemiah, and on October 8, 1880, on petition of the widow, Mi’s. Nettie Cheney, Amherst B. Cheney was appointed guardian of the minors, and gave the bond in suit, with his brother Zerah Y. Cheney and Edwin Bradford as sureties. In the fall of 1893, Amherst B. Cheney failed in business, and was at the time largely
Steps were taken to appeal from this determination, but, the appeal not having been perfected within the 30 days required by the statute, the minors filed a petition for leave to sue the bond. A citation was issued on this petition, and on the 18th day of July, 1895, an application was made to the circuit court for leave to perfect the appeal from the order determining the amount due the wards on the accounting. This application was in the name of Amherst B. Cheney, but on such application Zerah V. Cheney presented his own affidavit and the affidavit of his attorney, M. H. Walker, from which it appears that Zerah Y. Cheney had employed Mr. Walker to prosecute the appeal; and A. B. Cheney, in his own petition, swears that said petition was in fact being prosecuted by Zerah V. Cheney, his bondsman, at his own expense, and that the proceedings were under his control, and under the control of Walker, his attorney. On the hearing of this application, leave was granted to perfect the appeal. The appeal was thereupon taken, and upon the 2d of May, 1896, the decision of the circuit judge was entered on this appeal, but the findings were not finally settled until the 15th of May. On the 28th of May, 1896,
The statute upon which this action of the circuit judge was based is section 0332, 2 How. Stat., which provides that no action shall be maintained against the sureties on any bond given by a guardian, unless it be commenced within four years from the time when the guardian shall have been discharged. This is subject to exceptions not material to be noted here. Three reasons are urged against the ruling of the circuit judge:
(1) That, under the circumstances of the case, the statute had not run when the suit was brought.
(2) That the surety, having become a party to the accounting proceedings, is bound by the orders and final decree therein, and is concluded by the decision of the probate judge, who directed that an action might be brought upon the bond, in the face of the contention that the statute of limitations had run.
(3) That there was a new and sufficient acknowledgment and promise by the surety to revive and retain his liability.
It is further contended that the order of the probate court granting leave to sue the bond is res judicata of the defendant’s liability. But this court has held otherwise. See Hilton v. Briggs, 54 Mich. 266; Landon v. Comet, 62 Mich. 83; Schlee v. Darrow’s Estate, 65 Mich. 362; Welch v. Van Auken, 76 Mich. 467. It may be added that the order of the probate judge simply de
3. It is further contended that the defendant is estopped by the decision of Judge Adsit, on the application for leave to appeal from the accounting. On the presentation of the application for leave to appeal, and during the hearing, counsel for Mrs. Hinman stated, as one reason why an appeal ought not to be allowed, that the statute of limitations had run out, and that he thought, as a condition to permitting the appeal, a new bond should be required. Mr. Walker, who represented Zerah Y. Cheney, said that he did not understand that the statute of limitations would run until the expiration of 10 years, the bond being a sealed instrument. . Mr. Wolf, who appeared for Mrs. Hinman, then called attention to the statute (section 6332); and it was stated by Mr. Walker, as appears by plaintiff’s testimony, that it did not make any difference, that they (defendants) did not intend to plead the statute of limitations, and that they would pay whatever the court found was due. The court made an order permitting an appeal, in which was the following: •
“And it is further ordered that the request of appellees that, as a condition of allowing this appeal, appellant be required to give bond to pay any sum found due said estate, as an action on the guardian’s bond may be barred, be, and the same is hereby, denied, on the grounds that, in the opinion of the court, the action would not be barred, and also, in his opinion and judgment, it is not required in the interest of justice, nor for the protection of the estate.”
The most that can be said is that the judge proceeded upon a mistaken view of the law. This order does not indicate that the judge would have refused leave to appeal had he entertained the opinion that the action was barred, but that he might have ordered an additional bond. Nor does it appear that, as to the statute of limitations, Mrs. Hinman was in a worse situation after the order allowing an appeal than before, as, in the absence of any new promise, the statute of limitations had run at the time the
Mrs. Nettie Cheney testifies that in January, 1894, she sent for defendant to come to her house, and that defendant said “that he would pay us what there was coming from the estate, from A. B.” Elsby Cheney testifies that on one occasion Zerah Y. Cheney told him that, “when we found out whatever there was in the estate, he stood ready to pay it.” Other promises were testified to, but they were, according to the testimony of the witnesses, conditional upon the parties waiting the result of certain embezzlement cases pending against A. B. Cheney, — a condition which was not complied with. Such promises were not sufficient to remove the bar of the statute, unless the conditions named were complied with; but the promises claimed to have been made to Mrs. Nettie Cheney in January, and to Elsby, were, if the jury should find them to have been made, sufficient to take the case out of the statute. The force of this testimony was very much weakened in each case on cross-examination, but we are not prepared to say that the testimony of each witness, taken as a whole, did not authorize the finding of a promise. This question should have been submitted to the jury.
Judgment reversed, and a new trial ordered.