Cook v. Ceas ( 1904 )

This is an action upon a guardian's bond. The principal on the bond, George T. Ceas, and one of the sureties, C.P. Hensly, defaulted and took no part in the trial of the cause. The court below rendered judgment in favor of defendant Gardiner, the other surety on the bond, and against the plaintiff. The appeal is from this judgment and is taken upon the judgment-roll. Appellant contends that upon the facts admitted and found the judgment should have gone for the plaintiff.

It is alleged in the complaint that upon April 2, 1883, the superior court of Sacramento County, having jurisdiction of the matter, by an order duly given and made, appointed the defendant George T. Ceas the guardian of the person and estate of the plaintiff, his daughter, she having property in her own right, and being a minor under the age of fourteen years, and required the said guardian to enter into a bond in the penal sum of three thousand dollars; that thereafter the bond, as required by said order, was entered into by the said Ceas as principal, and the defendant Hensley and Gardiner as sureties, in the usual form and in the sum mentioned in the order. It is further alleged that the plaintiff married W.R. Cook in October, 1899, and is now his wife, but that the money claimed against the defendants is her separate property. It is further alleged, and found by the court to be true, "That such proceedings were thereafter had in the superior court of said Sacramento County, that the final account of said George T. Ceas, as guardian of plaintiff, was rendered, settled, and allowed by said superior court of Sacramento County, by its decree duly made, given, and entered on the twenty-fourth day of January, 1901, and whereby it was ascertained and determined by said superior court of Sacramento County that there was a balance due from said defendant George T. Ceas, as guardian of plaintiff, to plaintiff herein of three thousand one hundred and fifty and forty-seven hundredths dollars ($3,150.47), and the said superior court of Sacramento County then duly made and entered its decree that Adelia Cook, formerly Adelia Ceas, plaintiff herein, do have and recover from said George T. Ceas, defendant, as guardian of plaintiff, the said sum of $3,150.47, which sum was for moneys received by said George T. Ceas, as guardian of plaintiff." It is further alleged, and found to be true by the court, that neither said Ceas, as principal, nor said Hensly, as surety, had paid said sum of money so found to be due, or any part thereof, and that after the making of said order, and before the commencement of this action, the plaintiff demanded of the defendant P.H. Gardiner payment of the said amount specified in said bond, — to wit, three thousand dollars, — and that the said Gardiner refused, and still refuses, to pay the same or any part thereof.

The court further finds that at the time the complaint in this action was filed the order settling the final account "had not become a final order, and would not be until sixty days after the entry of the same, and consequently this action was prematurely brought"; and also, "that the court finds that the plaintiff's cause of action is barred by the provision of section 1805 of the Code of Civil Procedure of the state of California, for the reason that said minor reached her majority more than three years (to wit, April 30, 1897) before this action was commenced."

These so-called findings are mere conclusions of law drawn by the court from the facts admitted and found as already referred to. It is quite apparent that these conclusions of law are contradictory, and necessarily both cannot stand. If the action were prematurely brought, — that is, before the cause of action accrued, — it could not well be said that it was at the same time barred by the lapse of time. Section 1805 of the Code of Civil Procedure, referred to in the so-called finding, declares that no action can be maintained against the sureties on any bond given by a guardian unless it be commenced within three years from the discharge or removal of the guardian, unless the person at the time is under some legal disability to sue.

The theory upon which the court assumed that the cause of action was barred seems to have been predicated upon the assumption contended for by respondent's counsel in his brief, that upon the arrival of the ward at the age of majority the guardian was ipso facto discharged or removed. Such a result, however, does not follow upon the ward's arriving at majority or marrying. In the event of marriage the powers of the guardian are merely suspended as to the person of the ward, but not affected as to the estate. (Civ. Code, sec. 255; Code Civ. Proc., sec. 1751.) And where the guardian is appointed by the court, he is not entitled to his discharge as to the estate until a year after the ward's majority. (Civ. Code, sec. 257) Here, however, it is expressly found that no order or decree had ever been entered discharging or removing said guardian; nor could such order have been made before the settlement of his final account. (Code Civ. Proc., secs. 1697, 1808.)

And the plaintiff's cause of action did not accrue either as against the guardian or the sureties on his bond until the settlement of the guardian's account and the ascertainment of the amount due from him to his ward. "The general rule is, that the liability of the surety on an administrator's or guardian's bond depends upon the liability of the principal, and does not attach until that has been ascertained and determined by the judgment of a court of competent jurisdiction. This rule has been repeatedly announced and affirmed in this court." (Reither v. Murdock,135 Cal. 197. See, also, Allen v. Tiffany, 53 Cal. 16; Chaquette v.Ortet, 60 Cal. 594; Spencer v. Houghton, 68 Cal. 82.)

Although the guardian had the right to appeal within sixty days from the judgment or order settling his final account, there is no evidence that he did appeal. On the contrary, it may be presumed he did not, for it is recited in the findings that he failed to appear at the trial.

Conceding that the order in the probate court settling the guardian's account may be construed as a judgment, and that a judgment does not become final for many purposes until the time to take an appeal has expired, yet for many purposes it does take effect and is in full force from the time it is rendered and entered in the trial court. Harrison, J., inNaftzger v. Gregg, 99 Cal. 88,¹ says in reference to the admission of a judgment in evidence in that case: "It was a judgment that had been rendered between the same parties upon the same cause of action, and by a court of competent jurisdiction, and unless it is to be held that a judgment is not, under any circumstances, admissible in evidence until the time for an appeal therefrom has expired, the court properly received it. Section 1049 of the Code of Civil Procedure does not purport to prescribe a rule of evidence, but merely to determine the condition of an action after judgment has been rendered, and, inferentially, the effect of the judgment; and there are many cases in which a judgment is admissible in evidence at any time after its entry." A judgment may be executed as soon as entered, although the time for appeal has not expired, or even after an appeal has been taken therefrom, unless it be stayed by a proper undertaking. So, a judgment of divorce, it has been held, is effective to dissolve the marriage tie when it is rendered and entered upon the minutes. (In re Cook, 83 Cal. 415.) Besides, there is nothing in the record to show that any appeal was actually taken from the order settling the account. It cannot be presumed in aid of the judgment, in the absence of either allegation or finding to that effect, that an appeal was taken. It is therefore to be presumed that before the trial of this action the order had become final by lapse of time. At the time the order was made it had all the attributes of a final order, but was subject to the condition that it might be vacated on appeal. When the liability to this condition ceased by the expiration of the time for taking an appeal, the order became final as from its date, and was a sufficient foundation upon which to maintain an action on the bond. The case is somewhat analogous to that of a plea in abatement, in which, although the action pleaded in abatement may be pending at the time of the filing of the plea or answer, yet if at the time of the trial it has been dismissed, or otherwise ceased to be a pending action, the second action does not abate. (Dyer v. Scalamini, 69 Cal. 637; Moore v. Hopkins, 83 Cal. 270;² California S. and L. Society v. Harris, 111 Cal. 137.)

In this case an issue was raised by the pleadings as to the settlement of the guardian's account, and the order settling the same must have been admitted in evidence to justify the finding that it had been rendered and settled as stated. This action is not upon the judgment or order settling the account of the guardian, but upon the guardian's bond. The bond, as required by the code (Code Civ. Proc., sec. 1754), contained, among other things, the condition that at the expiration of the trust of the guardian he should have his account settled by the superior court, and pay over and deliver all the estate, moneys, and effects remaining in his hands, or due from him in such settlement, to the person or persons lawfully entitled thereto; and, as alleged and found herein, the court settled his account and found the amount for which the action is brought to be due the ward; and the failure to pay over this sum, as directed by the court, caused a breach of the bond, which is the foundation of this action.

The judgment is reversed and the cause remanded.

¹ 37 Am. St. Rep. 23, and note.

² 17 Am. St. Rep. 248.