*1 _ Jenkins, Atty., Ernest F. Park Comnfission defend 2450.00 Light _ Dept. Water and 20250.40 ants. _ General Government 34300.00 McNEILL, original J. This 67775.40 $ in wherein the this court seeks reducing board, The excise a writ of mandamus the excise board amount, amount of the in estimate of said board said to assemble ordered that a of es sufficient amount this its revoke general timated fund income from the approve said board to and statement of the financial estimate sinking be transferred fund and city year for the said fiscal library necessary expendi fund to meet the 1931-32, levy necessary of to make the there- appropriation tures and in The those funds. for, and to have extended the same authority. City excise of board has no such conformity year tax in rolls fiscal said Reid, Woodward v. requirements of the charter of said and duties of the excise city and Constitution of and laws said recently forcibly board have this been before state. in Extensive briefs been filed many orally appears city cases and matter has been the record that argued corporation length municipal of Stillwater hav- as to duties is a population approximately 7,000 in refer excise board changing, habitants, government, modifying, altering ence to charter a. form municipal corporation having- duly estimated needs of voted operated duly gov city, electors of charter form of said certified approved ernment, their and duties Governor also pro- Oklahoma. reference to the statement and board of commissioners financial duly prepared estimated for in vided charter needs of the various school boards in their certified the financial districts. statement and esti- city year mate of needs of said for the fiscal City of Oklahoma Bodine 1931-1932, duly which was advertised City, published and same certified to clerk court. Almost conclusive placed o-f the excise board on file questions identical instant case raised secretary; thereafter, day its November, are involved in case of State of Okla- board commissioners Moroney, Okmulgee City homa ex rel. passed a which resolution was attached to (2d) 430, city of said estimate the same was cided. passed upon by board, excise which res- granted, and The writ mandamus ap- olution shows the amount of total proceed in said excise directed to propriation board is necessary make ad valorem prayer forth levy accordance with the application herein, tax for the reason that this total sum mandamus filed the writ from other than tax- available sources other and further take ation. a total showed action not with the views here- inconsistent sinking fund to be raised taxation in the expressed. $37,848.29, sum of which under the valuation require levy of 8.016 mills. ON, CULMS SWIN- levy showed the amount to be raised tax DALL, ANDREWS, JJ., concur. LES- library $4',923.73, fund sum of TER, J., dissent. and of levy that under the valuation a mill OLARK, necessary. 1.04 mills was The financial statement and estimate passed upon by the excise board on Novem- ber board excise reduced Adm’x, SPENCER, al. HAMILTON et amount of estimate of the board of com- city missioners to for said Opinion Feb. Filed $67,775.40. fund sum of Supplemental fund reductions shown are as follows: Mayor 150.00 -$ _ City Clerk 2450.00 Engineer _ City 375.00 _ Department Street 2100.00 City Attorney - 750.00 _ Department
Police 1325.00 1425.00 2200.00 _ Department Eire Board of Ilealtli - *2 account, he refused to do. application plaintiff, hearing a was had attempt
in the to- settle court portion Hamilton, the accounts of of the order is as that court therefore rendered “That against B. F. Hamilton for the $138,000, sum amount of the such further expenditures upon legal rected appear hearing thereof, a full to be present administratrix di- bring and authorized suit the said B. F. Hamilton and appear an ac- for such sum from Bailey, count to be the estate of Samuel deceased, jur- courts as such isdiction of said action.” comply Hamilton failed to with this order plaintiff then him and his sureties in the district court. plaintiff The ease dismissed except trial as ilton of defendants Ham- Douglas, and the trial on objection of those defendants intro- duction of sufficient to rendered held the action, in their favor. appealed Plaintiff has to this court and contrary contends that Defendants, support law. ment, argue that can no cause accrue on of an administrator the bond until after a settlement and account- final court order settling that court and a de- showing a cree entered balance due or some bond, other' breach of the conditions part and a on the failure comply They trator to order. fur- ther claim that the order relied on and p. Hickok, Hickok, Kienzle W. D. B. & pleaded by plaintiff is not a final order Welty, Nicholson, and Geo. M. judgment settling or creeing the account and de- in error. agree a balance due the estate. We with defendants that rule is as Chapman Chapman, Chapman, & W. L. by them, agree stated Burnette, Reily, Swan C. F. H. for de- pleaded upon by .plaintiff, relied order fendants error. uncertainty thereof, This is an action order or set- constitute final tling in the district court Pottawatomie coun- administrator and the account ty by Spencer, E. showing Mrs. L. as administratrix the estate. a balance due deceased, Bailey, of the estate of Samuel Pennington Newman, In the Douglas, B. F. H. T. it is held: -others, to recover on .an administrator’s formerly nor the sure- “Neither an bond. Defendant Hamilton was a breach be sued for on his ties of the. administrator the estate of deceased there has administrator’s bond until of his been defendants on his other are sureties final or settlement admin- official bond. He was removed as istrator watomie after county court, (probate) a decree en- by the Potta- due, therein, showing or a balance tered was there- of the conditions other breach some duly appointed in his administratrix ad- Although having frequently stead. en- the decree accounting.” final to file his cited tered Burton, holding, 198; Guaranty This correct as Co. v. while Title exceptions, Stull, has its such well-defined 67 Okla. 61 Okla. Asher as where executor has absconded and Southern 161 P. Hatch, of Surety conceals himself the Co. v. account; fails final and a file dies where administratrix it is true that In at bar the case settle without without jurisdiction of within the ministrator was ment of the affairs court, but, sev- been cited after he the eral so to suit file a times to *3 may maintained court for be in the district by do, report and was ever filed no accounting. an the Southern case of he, having cited to him. When Surety Enfield, 116, P. v. 229 103 report, refused to do so file his final 446, it is said: as such had been removed we think the an an has “Where executor of estate ab- the estate with- sconded and himself and concealed is district action in the maintain an could court jurisdiction county court, and out the for an him by no final filed him or account has been his court, accounting, that such after hear- agent attorney, resident and where the render such ing the could county court, has appropriate proceedings, just proper. it ment as to seemed the amount due the executor found legatees, the as a to it is not urge has Defendants that precedent condition that be legal the and that exhaust her remedies to by filed the executor and a final decree of therefore, jurisdiction court, has no county settlement before a suit can court rendered ac an an action to entertain be the district counting. the that under is contended surety on his bond for 1330, C. of sections money alleged the embezzled amount to have been compel 1921, render by must S. the court executor and issues by Under tried in attachment. fact of the account district court.” conditions, sections, an these certain Again, Dansby, Donnell issued, may if the even be but attachment 317, 165, 58 Okla. ognizing rec- attachment, adminis an issued exception rule, to the his account. to file trator could still refuse said: delay refuse, only he could but Not the matter in “Neither guard fact does the ways, especially that different ian’s not been had settled appeal an or order from the plaintiff’s right court defeat of the court. To that action on the hold Pennington action. This court held in compelled delay to ac Newman, 36 Okla. that an counting feature until the outcome lie an adminis proceeding was determined attachment trator nor his sureties on his bond for a years. might delay accounting is broach of the bond there until been an had accounting had accounting court often that an be and settlement promptly, and, therein, be rendered as should show ing a promptly. clearly balance breach of some other make The statutes condition duty it to render of the administrator to report a full account administra with the decree entered on the settlement estate, tion of the and when he refuses so accounting. In that the adminis do, to after the court has ordered living trator was juris was within report, him to file his we an action think diction of the court and within reach of its be once .process, the district court guardian while here the has de accounting parted speedy hearing where a any life * * * and final had. determination be had. “The amount which came the hands into petition allege does not guardian easily ascertainable, ana file a final superior court had of this although so to demanded do investigate cause and the court. We think the be cause should re- any, termine the balance due. if and, upon remand, manded guardian’s doing and in deceased so amended, if be so should or desired counsel might hear evidence as to state of and, wards, soif the trial court. do ordered We accounts with his render in order to not think the coun- balance found justly due, might ty be allow the defendants court is and certain for that definite to show credit to which the deceased reason it is not the defendants lawfully entitled.” remand, herein. in order that no justice party, See, also, complete Henshaw, be done either Johnson v. 80 just ment, preserve rights all there should had and debts in order here under, credits be allowed and decision and jugment hereby trial recalled proper. just aside, Court seem of this and the Clerk and enter to refile said directed judgment Reversed remanded. nunc of this I com this cause CULLISON, LESTER, pro tunc, C. the date SWINDALL, ANDREWS, and KORNE Bell v. when said cause was submitted. GAY, JJ., CLARK, concur. Bell, Golds S. L. Ed. U. McNEILL, J., Hewitt, borough v. Frymyer, 105 Okla. Kaw Boiler Works (concurring). I concur in the conclusions ob- here reached. The ordered. ject bond for adminis- performance trator is to secure faithful duty. preserve duty main is to assets of the distribute them and to persons entitled. These are cred- CHICAGO, RY. CO. I. & P. R. OF PROTEST itors, legatees. as heirs or well Under early rules and some *4 succeeding trator another administrator predecessor not sue his bond. ago changed Years that was statutes. viz., statute, We have section O. S. Against “1202. Action Predecessor. An name, own parties the use and benefit of all interested in the of an maintain actions on bond executor, trator of the same estate.” case, In this ig- the first administrator nored actions of the court. Un- statute, der the suit was allowable. There are times when the adapted court are better proper disposition of matters than In the limited court. succeeding my view, right has a predeces- to sue his sor, or the predecessor, bondsmen of his recover for assets wasted. The court below right. denied this It refused to allow evi- dence to be introduced. Its action should be reversed.
Supplemental Opinion. PER CURIAM. This submitted and filed on 1932. On March to the issuance of man- date, plaintiffs in error motion to re- call and refile as of the date of
submission, on account of the death of F.B. error, defendants in one February, death of said defendant has been error suggested to this court for the time first occurred shown to cause, submission approval before the opinion by fact of said While death between submission and decision validity impair the