Longino v. Delta Bank ( 1897 )

Terral, J.,

delivered the opinion of the court.

On the 7th day of January, 1897, A. II. Longino; guardian of Annie, Pink and Mabel Witty, brought a suit against G. E. Duggan, on ten several promissory notes, payable to A. II. Lon-gino, guardian of said Annie, Pink and Mabel Witty, before E. L. Miller, mayor of Greenwood, and ex o'fficio a justice of the peace of Leflore county, and on the 26th day of January, 1897, recovered a judgment thereon for $170.60.

On said judgment a fieri facias was issued on the 23d day of Eebruary, 1897, and levied upon seven bales of cotton as.the property of the defendant, which were claimed and bonded by J. R.. Bew.

On the 13th day of July, 1897, said court “amoved the levy, discharged Bew from his bond, and taxed Longino with the costs of the suit. The case being appealed to the circuit court, the Delta Bank interposed its claim to the property, and was allowed to defend the suit, and thereupon moved to quash the execution in the cause. The motion was sustained, the execution quashed, and Longino appeals to this court.

From the evidence introduced upon the motion, it appeared that when the suit began, and for several years prior thereto, A. H. Longino was the guardian of said minors, having been duly appointed thereto by the chancery court of Montgomery county, and having duly qualified therefor; that on the 21st day of January, 1897, the resignation of said Longino as guardian of Annie, Pink and Mabel Witty, was accepted by said chancery court, and by a decree of said court-, “it was ordered that said guardian, and the sureties on said guardian’s bond, be relieved and fully discharged, upon payment and delivery by said guardian to his successor, when appointed, all money, property, and effects of said wards remaining in his hands, as shown by his fifth and last account now on file in said cause;” that at the January term, 1897, of the chancery court of Montgomery county, O. It. Kelso was appointed and duly qualified as guardian to said Annie, Pink and Mabel Witty, and that said Lqn-gino had not rendered to said chancery court any final account of his guardianship of said minors.

Are the proceedings in the case void? We think not. By the decree of the chancery court, Longino- was to be discharged from his office of guardian only upon the delivery of the effects and moneys of said wards to Kelso, and until then he had the rights of a suitor in court to enforce the collection of the notes in his hands as guardian. Being bound to account for these notes, and for all that might be made of them by diligence, it is only common riglit that lie should have standing in court, and a remedy upon them to enforce his own rights as well as those of his wards. Chambless v. Vick, 34 Miss., 109.

We see no objection to allowing tire bank to put in its claim to the property, but for the error of the court in quashing the execution, and giving judgment against the appellant—

The judgment is reversed, and the case is remanded for a new trial.