Hastings v. United States Fidelity & Guaranty Co. , 116 Ark. 220 ( 1915 )

Kirby, J.,

(after stating the facts). (1) A general demurrer was sustained to the original complaint and the plaintiffs therein joining all the other heirs, but one made defendant, with themselves, filed what was termed an amended complaint against the defendant in the original complaint, the appellee surety company, and the other heir of the deceased, Sarah Elizabeth January, who was not joined as a party plaintiff. A summons was issued upon this complaint against 'appellee company and it was in effect the beginning of a new suit, the plaintiffs having the right to join all parties as defendants against whom a cause of action could be alleged. Ferguson v. Carr, 85 Ark. 251; Choctaw, Oklahoma & Gulf Rd. Co. v. Hickey, 81 Ark. 579; Greer v. Vaughan, 96 Ark. 524; Warmack v. Askew, 97 Ark. 19.

(2) The court erred, therefore, in striking out the amended complaint, which was in effect a dismissal of appellant’s action against appellee and a final judgment from which an appeal eoulld be prosecuted.

(3-4) If the motion be treated as a demurrer to the sufficiency of the complaint, which is not 'the pr oper practice, it still should not have been sustained. The complaint alleged that plaintiffs were 'the only heirs and next of kin to the deceased insane person, that her estate had come into the hands of the defendant, J. C. January, as alleged guardian and curator by reason of the execution of the bond by appellee company, that Ms appointment as guardian was void, being made by the clerk of the probate court only and without authority of law, that he had not accounted for the estate coming into his hands by reason of his appointment; that he was in effect an equitable or de facto guardian and should be required so to do iand to pay to appellants all sums of money to which they were entitled, after he was allowed ia reasonable compensation for the support .and maintenance of the said insane person. The probate court only ¡had. the power to appoint a guardian of Sarah Elizabeth January, an adult person of unsound mind, and the clerk’s issuance of letters of guardianship without an order and adjudication of said court was without authority and void. The appointment being void, the probate court did not acquire jurisdiction of the person or estate of said insane person and the orders thereof approving .and confirming the purported settlements, of such guardian were void.

(5) It does not follow, however, that the said January, who acted as g-uardian and took possession of the estate of the- person of unsound mind after his attempted appointment by the clerk of the probate court and his surety upon the bond given before taking such charge, are not responsible for 'his properly accounting for said estate in accordance with the terms of ‘the bond. He may be treated in a court of equity .as an equitable guardian and held .legally to account for the property coming into his hands. 21 Cyc. 20; Hazelton v. Douglas, 65 Am. St. Rep. (Wis.) 122.

(6) The complaint shows in this case, as in Hazleton v. Douglass, -that, .although the person attempted' to be appointed was never the legal .guardian of the person of unsound mind, he was granted letters of guardianship by the clerk of the probate court without authority, and was -supposed to be, and that he gave the bond sued upon with ,appellee company as surety, by whioh means he obtained possession of her estate. The court there held the complaint .sufficient and the bond valid, saying,4 4 The bond was given voluntarily; it contravened no .statute; it was not even repugnant to the policy of the law; it induced the delivery to the principal of the supposed ward’s entire fortune.” The ‘bond herein was given under like conditions, and we see no reason why it did not constitute a valid obligation against the surety. See, also, Hauenstein v. Gillespie, 73 Miss. 742, 55 Am. St. Rep. 569, note; In re Doner’s Estate, 27 Atl. 42; Fridge v. State, 20 Am. Dec. 463; People v. Medart et al., 46 N. E. 1095; Griffin v. Collins, 49 S. E. (Ga.) 827; Iredell v. Barbee, 31 N. C. 250; Corbitt v. Carroll, 50 Ala. 315.

It follows that a good canse of action is stated in the complaint. For the error committed, the judgment is reversed and the canse remanded for further proceedings according to law and not inconsistent with this opinion.