Deegan Ex Rel. Neligh v. Deegan , 22 Nev. 185 ( 1894 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] The facts are fully stated in the opinion. By his last will and testament, M. W. Deegan, deceased, nominated and appointed Thomas Deegan to be the guardian of the person and estates of his minor children, to wit, John J. Deegan, Thomas Deegan and Michael Deegan. On or about the 23d day of July, 1888, the said Thomas Deegan qualified as such guardian, by the filing of a bond in the penal sum of $5,000 for the faithful discharge of his duties as such guardian, and entered upon the discharge of his duties. This action is brought upon the bond for a failure of the guardian to discharge the duties of his trust. The defendants first contend that the court had no jurisdiction to remove the former guardian, and none to appoint the present guardian. On June 27, 1893, the plaintiff filed a petition in the district court stating that the guardian had never filed any account of his guardianship, and asking that he be compelled to do so. An order was thereupon made that a citation issue requiring the guardian to file such an account on or before July 15, 1893, or then show cause why he should not do so. On that day, F. M. Huffaker, Esq., an attorney at law, appeared for the guardian, and asked for further time in which to file the account. The time was accordingly extended to July 22d, the court stating in the order extending the time that, if the accounts were not then filed, the letters of guardianship would be revoked. July 25th, Mr. Huffaker again appeared; but, no account being forthcoming, an order was made revoking the letters, and removing the guardian. On the same day the present guardian was appointed.

The objection in this case to the orders revoking the letters of the former guardian, and appointing the present one, is a collateral attack upon the judgment of the court in the guardianship matter. (Van Fleet, Coll. Attack, secs. 2, 3.) In such a case the jurisdiction of the district court is conclusively presumed, and evidence to the contrary is not admissible. (Black, Judgm., sec. 271; Van Fleet, Coll. Attack, sec. 841.) Upon another ground, also, the jurisdiction is sufficiently shown. The same as in case of a summons, service of a citation is only necessary to bring the party into court. If he voluntarily appears without it, such service is unnecessary. Here it appears from the record that the guardian did appear by attorney. To be sure, it was sought to be shown that the attorney had no authority to appear for him, but, upon collateral attack, such authority is presumed, and the contrary cannot be shown. (Carpentier v. City ofOakland, 30 Cal. 446; Weeks, Attys. at Law. secs. 196, 212.) It is, however, argued that the proceeding in the guardianship matter was simply to compel the guardian to account, and that in that proceeding the court had no jurisdiction, without further notice, to remove the guardian. Section 583, Gen. Stats., provides that all the laws relative to the accounts of executors and administrators shall govern in regard to the accounts of guardians, so far as the same can be made applicable.

Section 2897 directs that if any executor or administrator neglects or refuses to appear and render an exhibit, after having been duly cited, an attachment may be issued against him, or his letters may be revoked, in the discretion of the court. That was the situation here. After having been, presumptively, duly cited to render an account, and upon the hearing of the matter by attorney, he still neglected or refused to do so. This authorized the court to remove him. (Deck's Estate v. Gherke, 6 Cal. 668.) Section 6 of article VI. of the constitution vests in the district court jurisdiction in all cases relating to the persons and estates of minors; and its judgment cannot be successfully resisted until reversed or modified by some proceeding impeaching it. It is conclusive, not only against the guardian himself, but also against the sureties upon his official bond. Whatever binds and concludes the guardian equally binds and concludes his sureties. (Brodrib v. Brodrib, 56 Cal. 563; Holland v.State, 48 Ind. 391; Garton v. Botts,73 Mo. 276; Candy v. Hanmore, 76 Ind. 125;Lynch v. Rotan, .39 Ill. 20; State v. Slauter, 80 Ind. 597.)

The appellants contend that, the bond given by Thomas Deegan as guardian of the persons and estates of the minors being joint and several as to the obligors, but joint as to the obligees, this plaintiff cannot maintain this action without joining his co-obligees with him; and they interposed a demurrer to the complaint on the ground of defect of parties plaintiff, which was overruled. An objection of non-joinder of parties plaintiff cannot be taken by demurrer unless the complaint shows that the party for whose non-joinder the demurrer is interposed was living when the suit was commenced. And it is held that it is not enough that the complaint is silent on the subject; the fact must affirmatively appear. (Estee, Pl. Pr., sec. 3102; Bliss, Code Pl., sec. 411.) If it does not appear upon the face of the complaint, the objection must be taken by answer. This the defendants, attempted to do by an allegation in their answer that they were not liable to the plaintiff, but, if any liability existed, it was to the obligees named in the bond jointly, and not severally to plaintiff. This allegation is defective, in that it does not show that the omitted party or parties were living at the date of filing the complaint. (Wilson v. State, 6 Blackf. 212;Stockwell v. Wager, 30 How. Pr. 273;Levi v. Hacerstick, 51 Ind. 236;National Distilling Co. v. Cream City ImportingCo. (Wis.) 56 N.W. 866; Palmer v. Field (Sup.) 27 N. Y. Supp. 737; State, v. Goodnight,70 Tex. 688; Furbish v. Robertson, 67 Me. 38.)

Pleas in abatement have always been regarded with disfavor, by reason of the fact that they are dilatory in their nature, and seek to defeat the action upon technical grounds. The rule, therefore, in relation to the degree of certainty required, both as to form and substance of such pleas, requires fullness and particularity in the statement, leaving nothing to be supplied by intendment or construction; and the pleadings should show that it was necessary, in order to protect the rights and interest of the pleader, that the omitted party should be brought into court.

The appellants argue that the bond given in this case is not such a bond as is required to be given by law, and is for that reason null and void. There is no allegation in the answer, nor is there any statement in the points and authorities submitted to us by the counsel, pointing out wherein this bond is defective, except, as we can infer from his argument, that it is so by reason of the fact that it is joint in so far as the obligees arc; concerned. It has been held in a number of well-considered cases that a guardian's bond, though inartificially drawn or slightly defective, will be held sufficient to bind the obligors; and we cannot but think that there is manifest wisdom in the rule that the law will regard in transactions like the present, not the form, but the substance, of the instrument; nor does it seem to us that such a rule is ever, in any of its numerous applications, of more worth than when it is employed as a safeguard to persons who are unfortunate, and must of necessity be represented by agents appointed by the court and designated guardians. It must strike any one as preposterous that the bond given by a guardian can be defeated by a slight inaccuracy — by the addition or omission of a word or sentence. The present case will afford a fair illustration of the practical operation of such a pernicious principle. This guardian had the bond prepared by an attorney of his own choosing. The principal and his bondsmen signed it knowing that they were obligating themselves — the principal that he would faithfully perform all the duties of his trust, in accordance with law and the orders of the court; and the bondsmen binding themselves that they would be responsible for any defalcation or neglect of duty on the part of their principal. This instrument was presented to the judge for his approval. It was approved by the judge, and filed in the office of the clerk; and now, after the lapse of many years, when it becomes necessary to sue the bondsmen, the property of the minors having been misappropriated by the guardian, the bondsmen endeavor to avoid their obligation by raising the technical objection that one of the obligees cannot maintain the action without joining all others named in the bond with him. As the said bond was given subject to conditions prescribed by the statute, which conditions have not been fulfilled, in our judgment, law and public policy demand that such defenses should not prevail in this character of cases.

The case of Ordinary v. Heishon, reported in 42 N. J. Law, 17, was an action upon a guardian's bond. The defense was that the bond did not conform to the statute, by reason of the fact that but one bond was given for the guardianship of two minors, and was defective in other particulars. It was admitted that the statute of the state required a separate bond with respect to the estate of each minor. The court said: "The act of tendering such a bond as this, as the security called for by the statute, was an act of great carelessness on the part of the guardian and his sureties, and the acceptance of such instrument by the surrogate or the court was conduct still more censurable; but it would seem to be irrational in the extreme to conclude that, by reason of such improprieties, these sureties are to be absolved from all responsibility, and these innocent minors be left without redress. We have not adopted in this state the doctrine that, because a bond of this class does not conform to the statutory definition, it becomes, for that reason alone, unenforceable. In such a condition of things, the strong leaning of the courts has been to hold such instruments valid, to the full extent of their terms, so far as they embody the statutory policy, as voluntary obligations."

The case of Pursley v. Hayes, 22 Iowa, 28, was a proceeding to set aside a guardian's sale. One of the objections raised was that the bond was a joint bond, and hence void. In passing on this point, the court said: "Next is the objection that the guardian was appointed for the wards jointly, and the bonds are for their security in the same manner, * * * and certainly nothing has been more common in our practice than to appoint one guardian for all minors thus interested, and no rule of the statute can be found forbidding it." The case of Hooks v. Evans,68 Iowa, 54, was an action by one ward against her guardian and sureties. On the trial of the case in the nisiprim court, the sureties were released, and judgment entered against the guardian. The plaintiff appealed. In reversing the judgment, the appellate court said: "One question remains to be determined, and that is as to the amount for which these sureties are liable in this case. The judgment against the guardian was for $736 12. The penalty of the bond is $600. The judgment against the sureties might be for the amount of the penalty of the bond, but for the fact, which remains to be stated, that Evans was appointed guardian, not only for the plaintiff, but for three others, and the bond in question was given for their benefit, and was the only one given for the four. It is manifest that the aggregate liability of the sureties to the four wards could not exceed $600. The other three wards are not made parties, and without them no judgment can be rendered by which their rights can be impaired. It follows that the court below should have rendered judgment against the sureties for $150, and only that."

Although the bond in this case is not in strict conformity to the statute, yet the fact that it was given for the benefit of more than one minor does not vitiate it. The practice in this respect appears to be general and uniform in all courts authorized to take such bonds. The omission of the word "severally" does not weaken the bond, release the sureties, nor, in our opinion, deprive the individual ward from maintaining an action either against the guardian or his sureties. The nature of the guardian's duties is several, and would require a several inventory, a several accounting, and payment over to the wards, as they severally arrive at full age.

The appellants contend that there is no allegation in the complaint that the decree in the guardianship matter found the sum for which the judgment is given to be due the plaintiff; hut in this counsel is mistaken, for the complaint distinctly charges "that the final account of Thomas Deegan as former guardian of plaintiff has been settled in the above court, and $374 10 found to be due plaintiff thereon."

Counsel also contends that there is no allegation of a breach of the conditions of the bond; that there is no allegation that the money has not been paid to the plaintiff; and that, consequently, the complaint does not state facts sufficient to constitute a cause of action. To this contention, however, we think there are two sufficient answers: First — The complaint does allege "that, after qualifying as such guardian, the said defendant Thomas Deegan received as said guardian, of the person and estate of plaintiff, the sum of $1,286 40 of the moneys belonging to plaintiff, and has unlawfully converted the sum of $574 10 thereof to his own use." The demurrer is general so far as this point is concerned, and the defect now relied upon is not specially pointed out as such. Then; can be no question that the allegation just quoted was intended as charge of a breach of the conditions of the bond. Admitting that it is not sufficient as such, it is still more a defect of form than of substance, and is quite different from a complaint that contains no allegation of a breach. As such it was waived by the general form of the demurrer, (Grant v. Sheerin, 84 Cal. 197; Bliss v. Sneath, 36 P. 1029.) Second — The office of guardian is one of trust and obligation. He is bound to act for the best interest of his ward, and not for his own; and, whenever he seeks to gain an advantage at the expense of his ward, such act is fraudulent. It was the duty of the guardian to keep the money of his ward separate and intact from his own funds, and invest the same for the best interest of his ward. He had no right to use it in his own private business, nor for his own purposes; and, if he did so, such use was a breach of his duty. (1 Perry, Trusts, sec. 275.) The bond was that he should faithfully execute the duties of his trust according to law; and if he converted the money to his own use, as charged in the complaint, there was clearly a breach of his duty as such guardian, and consequently a breach of the condition of the bond, for which his sureties are responsible. (State v. Roberts,21 Ark. 263; Irwin v. Backus, 25 Cal. 221.)

It follows that Thomas Deegan was legally removed as guardian and by such removal his trust expired, and the conditions of his bond were broken. Henry Neligh, having been selected by the minor, and at his request appointed by the court, is the legal guardian.

The judgment and order appealed from are affirmed, and it is so ordered.