Evison v. Hallock , 108 Wis. 249 ( 1900 )

On a motion for rehearing appellant contended, inter alia, that, taking the allegations of fact in the complaint as true, it was the guardian’s duty, within a reasonable time after the sale, to apply for the necessary order and pay this debt against his ward, and a failure to do so was a breach of his bond for which he and his sureties are liable. Bartlett v. Hunt, 17 Wis. 216; State v. Mills, 55 Wis. 229; Joint School Dist. v. Lyford, 27 Wis. 506; State v. McFetridge, 84 Wis. 531. And it being a part of his duty to apply for and get the necessary order, both he and the sureties upon his bond are estopped to urge that no order was made. To allow them to do so is to allow them to take advantage of their own neglect of duty. Even if there be no technical breach of the bond, the sureties will not, because of .the mere absence of such order, be relieved from liability by a court of equity. If they were entitled to have a formal order entered before suit, still, this being an action in equity in the same court, where the court can protect the rights of all parties, the failure to get the order before suit would only affect the question of costs. O'Dell v. Burnham, 61 Wis. 562. There is no occasion for a multiplicity of suits in the matter.

The motion was denied December 1, 1900.