National Surety Co. of New York v. White , 21 Ga. App. 471 ( 1917 )

Broyles, P. J.

This was an action on a guardian’s bond executed by H. I. Hilburn as principal, and the National Surety Company of New York as surety. The petition,-omitting the heading and the prayer, is as follows:

“1st. That on the 4th day of June, 1909, H. I. Hilburn was appointed guardian of the person and property of I. H. Hilburn of said county, and that the National Surety Company of New York went on his bond as surety guardian.

“2nd. That H. I. Hilburn'took possession of the property of the said I. H. Hilburn as such guardian and held possession of same for two years, and that in 1911 he was removed and B. M. Hilburn appointed in his place; that in 1914 B. M. Hilburn as guardian of said I. H. Hilburn sued H. I. Hilburn for settlement of his acts and doings as guardian of I. H. Hilburn and obtained a judgment against him in ordinary court, Laurens county, Georgia, for $1800.

“3rd. That said judgment was appealed by H. I. Hilburn to the superior court, Laurens county, Georgia, and gave as surety on said appeal bond W. D. Martin, and that judgment was rendered in the superior court on said appeal against H. I. Hilburn as principal and W. H. Martin, surety, for the sum of $2260.

“4th. That said execution was levi.ed on the property of W. D. Martin, and he was forced to pay same and take transfer to him. A copy of said execution is hereto attached.

“5th. That the default of H. I. Hilburn as guardian for I. H. Hilburn was made while said surety company was on his bond.

“6th. That W. D. Martin as security on the appeal bond and .as transferee of the execution is subrogated to all the rights and remedies of B. M. Hilburn, guardian .aforesaid; hence he brings this suit in the name of the present ordinary E. D. White for the use. of W. D. Martin, transferee, against said H. I. Hilburn and New York National Surety Company, for amount paid out by Mm on said executions, to wit: $2260.

“7th. That W. Á. Wood of said county is the legal agent of said New York National Surety Company; that'H. I. Hilburn is a resident of said county.”

The following amendment to the petition was allowed, subject to demurrer: -

“1st. That the defendant H. I. Hilburn is insolvent, and was at the date the appeal bond was given.

“2nd. That a copy-of the bond sued on and the appeal bond is hereby attached and made a part of this petition.

“3rd. That H. I. Hilburn as guardian of I. H. Hilburn is short with said estate as guardian in the sum of $2300, as .per schedule and statement hereto attached, and that he has no property subject to the judgment and execution recorded against him for said amount.

“4th. That all of said property and money came into his hands as guardian of I. H. Hilburn while he was under said bond furnished by said National Surety Company.

“5th. That H. I. Hilburn has not accounted to said estate, the ordinary, present guardian, or any one else for said money, funds, and assets, and now owes the same and same is past due and unpaid, and that he fails and refuses to pay the same after being demanded to do so.”

Applying the principle laid down in the.first headnote, the petition as amended failed to set -out a cause of action against the National Surety Company of-New York, and the court erred in overruling the demurrer interposed by that company.

Judgment reversed.

Bloodworth, J.', concurs. Harwell, J., concurs dubitante.