Hailey v. Boyd's Adm'r , 64 Ala. 399 ( 1879 )

BRICKELL, O. J.

It is conceded that an action at law cannot be maintained by the ward upon the bond of the guardian, until the liability of the guardian has been ascertained by the decree of a court of competent jurisdiction. An action at law upon the bond is not an appropriate mode of ascertaining and fixing the liability. A decree of the Court of Probate, or of the Court of Chancery, having jurisdiction to take the accounts and settle the administration of the guardian, ascertaining the amount of his liability, establishes the right of the ward to maintain an action at law upon the bond, against the principal and sureties jointly, or either of them separately. It is admitted that, when such a decree is rendered by the Court of Probate, in the absence of fraud, it is conclusive on the sureties. The argument is made, that this is true only of a decree of that court; and is true of such a decree, because the sureties are quasi parties to it, by virtue of the statute, which authorises an execution against them founded on it (Code of 1876, § 2794); but that it is not true of a decree in chancery, rendered on a bill for a settlement of the guardianship, filed by the ward, to which he does not, as he may, make the sureties parties.

We do not enter on the question, whether, prior to our present statute, if a ward had filed a bill against the guardian and one or more of the sureties, omitting others, the sureties could not have demurred for the omission. It may have been their right to have required that their co-sureties, unless some good reason for the omission was shown, should be before the court, affected and bound by the decree sought against them, and compelled to contribute to its satisfaction. The statute now confers on a complainant, having a joint demand, the right to proceed against one or more of the parties thereto, without joining the others (Code of 1876, § 8754); and it is not now of practical importance to consider what was heretofore the proper practice in the case suggested. Before, or since the statute, the ward may proceed, in chancery, against the guardian alone, without joining the sureties. The decree becomes binding and conclusive on the sureties, in the absence of fraud, not because they are parties, but because they are privies to it — as binding and conclusive as would be the decree of the Court of Probate. The jurisdiction of the Court of Probate, and of the Court of Chancery, is concurrent in matters of guardianship; and the ward has an unqualified right of electing the forum in which he will make a settlement, the jurisdiction of the one not having attached. The decree against the guardian is conclusive on the sureties, because they are privies in contract. For the faithful performance of all the duties required of the guardian by law, tll'ey are bound by the terms of the bond; and a full settlement of his guardianship in the Court of Probate, or the Court of Chancery, as the ward may elect the one or the other forum, is a duty enjoined upon him by the law. The decree rendered against him is in the nature of a judicial admission made by him ; is an act done in the performance of his trust and duty; and, for this reason, is binding and conclusive on the sureties; and not upon the theory, that they are parties to the record, directly or indirectly. — Townsend v. Everett, 4 Ala. 607; Williamson v. Howell, 4 Ala. 693; Chilton v. Parks, 15 Ala. 671; Perkins v. Moore, 16 Ala. 9; Freeman on Judgments, § 180; Brandt on Suretyship, § 480. "Whether the settlement is made and the decree rendered in the Court of Probate, or in the Court of Chancery, there is no doubt, if good reason was shown, either court would permit the surety to intervene pro interesse suo, and protect himself from the faithlessness, or want of diligence of his prinpal in making defense.- — Baines v. Barnes, at the present term; Garber v. Commonwealth, 7 Penn. St. 265. There is less room for apprehension that the surety will be injured by the want of opportunity to make defense, if he is not technically made a party to the record, than of the injustice and vexation which may follow from suffering the decree against the principal to be collaterally impeached.

It results, the Circuit Court erred in sustaining the demurrers to the complaint ; and for the error, the judgment must be reversed, and the cause remanded.