Bombeck v. Bombeck , 18 Mo. App. 26 ( 1885 )

Opinion by

Philips, P. J.

I. The respondent claims that the judgment of the circuit court should be affirmed because the appellant has failed to have the transcript of the record filed in the supreme court (from which court the case has been transferred here. under the amendment of the state constitution organizing this court), within the time prescribed by statute. The appeal was perfected in the circuit court at such time as to make it returnable to the October term, 1882, of the supreme court, but the transcript was not filed in the supreme court until the 11th day of December, 1882. Aside from the grounds of excuse presented in affidavits by appellant’s counsel for the delay, we think the application for affirmance comes too late, and that the respondent has not brought herself within the terms of the statute entitling her to the affirmance.

The respondent might have made this motion at the October term, 1882, of the supreme court, but she has slept on her rights two and one-half years, permitting five terms of the court to pass without moving in the matter; thereby, by her own laches, allowing the appellant to regard his appeal as completed. Super-added to this, she does not make this suggestion for affirmance until the case is ready for hearing in this court, and does not file as the basis of her application -either a transcript of the record of the circuit court, as required by the general statutes, or the certification of the circuit clerk, as required by the act of 1883. She ought not thus to be permitted to rely upon the transcript filed by the adverse party at his expense while seeking advantage of his failure to file the transcript. Esly v. Post, 76 Mo. 412; Caldwell v. Hawkins, 46 Mo. 263.

II. There is no bill of exceptions in this record, and consequently there is no objection to any evidence to any objection offered or received on the trial, nor any Instructions for review, nor any motion for new trial nor in arrest of judgment. What then is before this court for review? In such condition of the record it is usual to say that the court can only examine such “errors as are apparent upon the face of the record,” and affirm or ¡reverse the judgment below as errors may or may not appear thereon. Ordinarily the record proper is the petition and other pleadings in the case, the summons and officer’s return thereon, and the judgment of the court. Bateman v. Clark et al, 37 Mo. 34. Originating as this proceeding did in the probate court on a mere citation to the delinquent guardian and curator, there was no petition in legal contemplation. The summons may be regarded as a part of the record proper, as also the return of service thereon by the sheriff. No answer, in strictness, to this citation is contemplated by the statute and methods of procedure in such cases. The guardian’s appearance is merely either to exhibit his statement of accounts between him and his ward, or, if not then ready, to present the same, to ask for further time. No reply, in form, is required by the ward to make an issue on the settlement thus tendered. If controverted, the probate judge proceeds to examine into the state of accounts, either on the proofs submitted or on the record evidence in his court. If the guardian, as in this case, denied having received any property or effects of his ward as guardian it was only necessary for bim to have so stated in his settlement tendered. On the denial of the correctness, orally or in writing, of this statement, the court would proceed to hear the case on the proofs and make settlement as the evidence and the law might warrant. I, therefore, question whether the return, voluntarily made by the defendant, to the citation can properly be regarded as a part of the record in this case without having been incorporated in a bill of exceptions. In Peck v. Childers (73 Mo. 484), Norton, J., says: “There being no bill of exceptions in the case, we can only consider, under the authority of the case of Sweet v. Maupin (65 Mo. 72), whether the petition states a cause of action, and whether the court had jurisdiction of the case.”

There can be no question but that the citation in this case was sufficient. Even had it been informal, the defendant waived any objection thereto by appearing. It is equally clear that the probate court of Buchanan county had jurisdiction over the case. By express provision of the statute jurisdiction is conferred on probate court over all matters pertaining to probate business, “and settling the accounts of curators and guardians.” (Sec. 1176, Rev. Stat). By section 2600 guardians and curators are required to make “ settlements of their accounts with the probate court in which their proceedings shall be.”

Admitting, however, all the defendant contends for in this case, that, from the pleadings and the entry made by the circuit court in passing on the motion for new trial, the plaintiff had attained her majority when defendant collected the money in question, is there any thing in all this to show that the judgment of the probate court is bad for want of jurisdiction to render it ? The appellant contends that the guardianship of the defendant over the plaintiff ceased on her majority. This may be conceded. In re Nicoll, 1 John Ch. 25; Jones v. Ward, 10 Yerg. 161; State v. Rosswaag, 3 Mo. App. 20. It may also be conceded, as a general rule, that when a guardian collects money of his ward after the ward reaches his majority, it .would establish the relation of debtor and creditor between them, and entitle the ward to maintain an action against him as for money had and received. Bull v. Towson, 4 Watts & Serg. 568-9; State ex rel. v. Willi, 46 Mo. 328. But does this rule involve the conclusion of law, that if, in making the settlement of the guardian’s accounts with the probate court, it should include in the charge against him an item received after his ward became of age, that would constitute such error apparent of record as would entitle the appellant to have it reviewed, without either motion for new trial or in arrest of judgment in the trial court %

Notwithstanding the majority of the ward the probate court still has jurisdiction to compel the guardian to make final settlement, and to render judgment against him for the balance found in his hands. If in such settlement the court should include an improper item, was that any thing more than- an error committed in the progress of the case, for the correction of which a motion for retrial or in arrest was indispensable in order to afford the trial court an opportunity to correct its error? It is not correct to say that for every error apparent ■ of record, a reversal of the judgment will follow, “unless an appropriate motion gives opportunity for their correction by pointedly calling attention of the trial court to them.” Sweet v. Maupin, supra.

Furthermore, the position taken by the appellant involves the proposition, necessarily, that under no state of circumstances can the probate court render judgment against a guardian for moneys which come to his hands after the ward arrive, at full age. This is not sustainable. Giving the appellant the full benefit of his contention, that his return to the citation is a part of the record, by it he confesses that he collected this money from the estate of the ward’s father, as guardian. The judgment of the probate court expressly recites that he so received it and receipted for it. And the judgment of the circuit court, in effect, finds that he received it as guardian. Every intendment of law must be made in favor of the regularity of the judgment of courts of record, and the further presumption must be indulged, in a case where the evidence is not preserved in a bill of exceptions, that the necessary proof was made to warrant the judgment. Jones v. St. Jos. F. & M. Ins. Co., 55 Mo. 344; Bayha v. Kessler, 79 Mo. 555: Birney v. Sharp, 78 Mo. 73.

Without prolonging this opinion to unnecessary length with a review of the authorities, I conclude, both on authority and reason, that where a guardian under color of his office, either during the minority or the majority of his ward, obtains possession of the ward’s money or property before final settlement, he is estopped to deny, when called into court as guardian to account for it, that he received it as such guardian. After misusing his ofB.ce to carry to his pockets the money of his late ward — money which he could not have otherwise obtained than as guardian — he should not be heard to say: It is true I wrongfully, colore officii, obtained this money, but will account for it only in my individual character. Especially must this be so where he seeks by the repudiation of his guardianship to escape the measure of liability which would attach to the fund as a trust in his hands as guardian. Big. Estop. 435, 576 ; Perryman v. Greenville, 51 Ala. 507; Morris v. The State, 47 Texas 583; McClure v. Commonwealth, 80 Penn. St. 169 ; U. S. v. Nicolls, 4 Cranch, Cir. Crt. 290; ib. 191; U. S. v. Bender, 5 Cranch. 620; Jackson v. Bently, 10 Mo. 294; Dix v. Morris, 66 Mo. 518; Miss. Co. v. Jackson, 51 Mo. 23 ; State v. Powell, 44 Mo. 436 : Rollins v. State, 13 Mo. 438.

The court dealt quite leniently with this delinquent party in charging him only six per cent., interest. By his appeal he has now withheld from the child of his dead friend her inheritance for five years at six per cent. • and this court would be justified, perhaps, in affirming this judgment with ten per cent, damages. But we will give the defendant the benefit of the doubt. The judgment of the circuit court is affirmed.

All concur.