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v.

SUPREME COURT OF OHIO.

court reversed. This is a petition in error to

reverse the judgment of the district court. WILLIAM A. PEPPER

White & Waters, and Thomas & Thomas, for

plaintiff in error. N. H. SUWELL, ADMINISTRATOR.

Loudon & Young and John G. Marshall, for

defendant in error. In an action against an administrator, the objection that the claim sued on was not presented for allowance BOYNTON, C. J. before the action was brougbt, is waived, where the aduninistrator joins issue and goes to trial on the validity of

We suppose that the judgment of the court the claim without objection.

of common pleas was reversed by the district Error to the District Court of Brown County. court upon the ground that the claim sued on The plaintiff, William A. Pepper, brought an

had not been presented to the defendant in error action against W. N. Raney and N. H. Sidwell,

for allowance as a valid claim against the estate as administrator of the estate of James Sidwell,

of James Sidwell, it having been shown in evideceased, on a promissory note, joint in form and

dence without objection, that the action was dated April 1, 1866, by which said Raney and brought before the expiration of the time alJames Sidwell promised to pay to the order of

lowed by the probate court for the collection of

the assets of the estate. the plaintiff, the sum of $1,218.50, with interest at ten per cent., at twelve months from date. The petition contained no averment that the The petition did not aver that the note or claim

note or claim sued on had been exhibited to the had been exhibited to the administrator for al

administrator, and had been disputed or rejected lowance, and by him disputed or rejected, nor by him; nor that the period of eighteen months, that eighteen months had expired from the date

or the further time allowed by the court, if any, of the administration bond or the further time

to collect the assets of the estate, had elapsed, beallowed by the court for the collection of the fore the commencement of the action; nor was assets of the estate of James Sidwll; nor were

there any averment either that the estate had facts stated showing the case to fall within any

been represented to be insolvent, and that the of the exceptions of section 98 of the adminis- action was brought to settle the validity of a tration act.

contested claim, or that the claim was one that No demurrer was interposed to the petition,

would not be affected by the insolvency of the and the only defense set up by the answer of N.

estate, if such insolvency in fact existed. But H. Sidwell, administrator, was that James Sid

the defendant neither demurred to the petition, well was only a surety on the note, and that nor did he take any objection by answer that after the same became due, the plaintiff and the claim had not been presented for allowance. Raney, the principal maker, entered into a valid On the contrary he set up a defense to the merits agreement for the extension of the time of

pay;

of the claim, and went to trial on the issue joined ment of the note without the consent of said

thereto. In view of these facts we think he intestate.

should be held to have waived the right to rely Wherefore, he prayed to be dismissed with

on the failure of the plaintiff to show a presentacosts.

tion and rejection of the claim, as a defense to Issue was joined by a reply, and the case went the action. That a petition against an adminto trial to a jury. On the trial, the defendant

istrator is defective that does not show that the Sidwell proved, without objection, that the pro.

claim was presented and disallowed, or that the bate court extended the time for the settlement necessary tìne has preceded the commencement of said James Sidwell's estate, first for one year

of the action, was held in Hammerle v. Kramer, from March 24, 1868, and again from February (12 Ohio St. 252); and it was also there held, 10, 1871, until October 10, of the same year. The

that the petition might be demurred to as not suit was brought long before this time expired.

stating facts sufficient to constitute a cause of acThe court was asked by the defendant, Sid

tion against the administrator. In commenting well, to instruct the jury as follows:

on the question as one of practice, Scott, C. J.,

said: “As under the provision of this section, “If the jury find from the evidence in the

no action can be maintained against an adminiscase, that the said defendant was appointed ad-trator, by a creditor, till after the lapse of eightministrator in the month of October, 1866, and

een months from the date of the bond, unless in that on the 26th day of March, 1868, the probate certain specified cases, we think the petition of court of Brown county, Ohio, on application of the creditor should aver the necessary lapse of said administrator, gave him the additional time

time. This is a condition essential, generally, of one year to collect the assets of said estate, and that said time had not expired at the date ative in its character, and if denied, the burden

to the plaintiff's right of action. It is also affirmof the commencement of this action against of proof is on the plaintiff, and we think, unless said administrator, then the verdict of this jury it is a verred, the plaintiff does not show even a must be for the said ciefendant."

prima facie right to sue.” This language had refThe instruction was refused and an exception erence to the right of the administrator to raise noted. The jury found a verdict for the plain the question of the plaintiff's right to sue by detiff, on which judgment was rendered in the murrer, where the petition did not show that the court of common pleas, but which the district claim had been presented and rejected, or the lapse of the time necessary to the maintenance

SUPREME COURT OF OHIO. of the action.

To the rule there laid down we fully adhere. WILLIAM A. King, GUARDIAN OF CAROLINE F. In that case, the objection was timely taken and

COOPER, insisted on, that the petition failed to show such facts as rendered the administrator liable to an

SAMUEL S. BELL, ET AL. action at the time the action was brought. The case, however, does not support the proposition

B. was appointed and qualified as guardian of C., an in

fant, and a person of unsound mind; but the record was that the administrator, who takes no objection silent as to the grounds of the appointment. C. was of either by demurrer or answer to the failure of unsound mind when she arrived of age, and

so continues. the plaintiff to bring the case within the statute,

For more than seven years after C. was of age B. acted as

her guardian, and was repeatedly so recognized by the may go to trial under a defense by which he con

court in settling his accounts, in requiring a new bond, tests the validity of the claim sued on, and in approving the same when presented, and in accepting his case of failure in such defense, may fall back and

resignation and settling his final account. Hela:

1. That, as the court had jurisdiction to appoint & defeat recovery on the ground that the claim

guardian, on the grounds of lunacy as well as infancy, was not presented for allowance, and conse · the presumption is, upon the facts stated, that the apquently, that the action was prematurely

pointinent covered both grounds.

2. That in such case, the taking of the new bond after brought. The provision of the statute exempt. c. arrived of age, but while still of unsound mind, was ing the administrator from liability to be sued, authorized by law. until certain preliminary steps are taken, or a

3. The su reties on such new bond are liable for a

breach of its conditions. certain period of time has elapsed. is a privilege 4. In an action against three defendants, upon a that may be waived. The object of the statute joint and several obligation, final judgment was rendered is to afford the administrator an opportunity to

in favor of two of said defendants, and the action was alallow all valid claims against the estate, and

lowed to stand undisposed of as to the third.

In a petition in error by the plaintiff to reverse the thereby avoid litigation and expense. It was judgment against him in favor of ihe two defendants, the designed to protect estates from unnecessary

i hird, against whom no final judgment has been rendered

is not a necessary party. costs and vexation where the administrator is satisfied that the claim is just and valid. Here

Error to the District Court of Licking County. the validity of the claim was in fact disputed at

The court of common pleas and district court the trial, and the liability of the defendant

sustained a demurrer, filed by defendants Flory thereon denied, and the plaintiff subjected to

and Shields, to the following petition, on the large expense and trouble in resisting a defense ground that no cause of action was stated against

thein : made to its merits. To subject him to the expense and hazard of a

“The said plaintiff, William A. King, as the trial, and then deprive him of a judgment, not

guardian of Caroline F. Cooper, for cause of acwithstanding the issues were determined in his

tion herein, says: favor, upon the ground that the petition was de

“That on or about the 4th day of February A. fective in the particular mentioned, would be

d. 1856, the said Samuel S. Bell was appointed manifestly unjust. The conduct of the adminis- by the probate court of said county to be the trator, in contesting the claim, shows that the guardian of the said Caroline F. Cooper, who estate lost nothing by the omission to present

was then a resident of said county, an infant, the claim for allowance. In our judgment, and (as the plaintiff is informed and believes) a where the petition fails to show the disallowance person of unsound inind; that the entry of said of the claim, or that the time allowed for the col- appointment, made upon the records of said prolection of the assets of the estate elapsed before

bate court, did not contain any express adjudithe commencement of the action, and the de

cation that the said Caroline was then a minor fendant takes no objection either by demurrer or

of unsound mind; but stated that said Bell was answer, but goes to trial upon issues in which he appointed guardian of Caroline F. Cooper, aged contests the validity of the claim, it is too late to

seven years, heir-at-law of Elijah Cooper; that insist on the non-presentation of the claim, or

the said Bell then gave bond according to law, the premature bringing of the action, as a de

and entered upon the discharge of his duties as fense to the plaintiff's right to recover. Other

such guardian; that the said Caroline became questions are made by the record, none of which, in eighteen years old on or about the 20th day of our opinion, justified the district court in revers

April, A. D. 1867, and at the time of arriving at ing the judgment of the court of common pleas. that age she was and has ever since then, been a Judgment of the district court reversed and

person of unsound mind, and incapable of manthat of the common pleas affirmed.

aging her business affairs; that the said Bell,

from that time until the 16th day of September, [This case will appear in 36 0. S.]

A. D. 1874, acted as her guardian, and from time

to time, in the years of 1867, 1869 and 1871, KEEPING BORROWED Books.-Sir Walter Scott filed his accounts as such guardian, in the said once lent a book to a friend, and as he gave it to probate court, in which accounts he asserted him begged that he would not fail to return it, himself to be such guardian; and his said acadding, good humoredly, "Although most of my counts were passed upon and settled by said friends are bad accountants, they are all good court accordingly; that on or about the 3d day of book-keepers."

April, A. D. 1871, the said Bell appeared in and before the said probate court, and represented to and twenty-six dollars and eighty-four cents the same that Justin Morrison and Alexander ($4,126.84), interest being computed to the said Morrison, his sureties on his bond, as such guar- last named day, and which sum the said probate dian, theretofore given in said court, were non- court then ordered the said Bell forth with to pay residents of Licking County; thereupon, upon to the plaintiff. the motion of said Bell, the following order or "That on the 8th day of December, A. D. 1874, judgment was made by said court:

the plaintiff

, as such guardian, demanded of said "IN THE MATTER OF THE GUARDIAXSHIP OF (ARO

Bell the payment of said last named sum ; but

he has not paid the same or any part therof, exLINE F. (OOPER.

cept the sum of $330.14, paid by his assignee on ""This day came Samuel Ş. Bell, guardian of January 8th 1875. The plaintiff demands judgCaroline F. Cooper, and on his representation that Justin Morrison and Alexander Morrison, thousand eight hundred and twenty-six dollars

ment against the defendants for the sum of three his sureties on his bond, heretofore given in this wurt, as such guardian, are non-residents of day of January, A. D. 1875.

and cighty-nine cents, with interest from the 8th Licking County, and for other causes on the motion

“.J. BUCKINGHAM, of said guardian, it is ordered by the court that

Attorney." said guardian enter into a new bond in the sum

“The plaintiff, yielding to the defendant's of $12,000, as such guardian, with William Shields and Abraham Flory, freehollers of this

inotion in that behalf, says that the said sum of

five thousand dollars, or more, received by said county, as his sųreties, conditionel :ccording to law, and the said guarılian havin: entered into April, A. D. 1871, and before the making of the

Bell was so received before the said 3d day of said new bond, the same is approvrei ani filerl.' * That on the 3d day of April , 1. v. 1871, the bond, on which this writ is founded.

"J. BUCKINGHAM, defendants made and delivered to the judge of the

Plaintiff's Attorney. said court of probate, their writing obligatory of

The demurrers of Flory and Shields to the pethat date, scaled with their seals, (ind a copy of

tition were sustained, and final judgment renwhich is attached to the orignal peiition herein, dered in their favor, leaving the case to stand as and made a part of this petition), and thereby

to Bell in the common pleas. He is not a party bound themselves, jointly and serrrally, to pay to this proceeding in error. to the State of Ohio the sum of $12.000.

J. Buckingham, for plaintiff in error. "That the said bond was and is subject to the

J. A. Flory, for defendant in error. condition that it should become void if the said i

JOHNSON, J. Bell should faithfully discharge liis duties as

It is claimed that said petition does not state such guardian, and otherwise, to be and remain

facts sufficient to constitute a cause of action in full force; that on the same day the said bond ! against the sureties on said bond. 1st.

1st. Because and sureties were approved by said court. "That on the said 16th day of September, 1877,

the probate court had no authority to require, the said Bell resigned bis guardianship, and cer.

receive or accept the same; 2d. There is no

breach alleged ; 3d. It is void for a want of tain proceedings were had in said probate court consideration ; and, 4th. The bond was not detouching the same. The record whereof is in the livered. It is further insisted, that as Bell is following words:

not a party to this proceeding in error, this court "Be it. remembered, that on this day, Samuel has no jurisdiction. S. Bell, guardian of Caroline F. Cooper, a lunatic,

1. The point is made that Bell, who is the tendered to this court his resignation is such principal on' the bond and a defendant in the guardian; and which resignation, for reasons original action, is a necessary party in this pro satisfactory to the court, is hereby accepted, and ceeding in crror. Smethers v. Rainey (14 Ohio said guardian is hereby ordered to file his tinal St. 287) and Jones v. Marsh (30 Ohio St. 20) hold account herein, which is accordingly done. that all parties to a joint judgment should be

"That, thereupon, on the 22d day of Septem- Parties in error. Here the final judgment was ber, 1874, the plaintiff herein was appointed by in favor of Flory and Shields, and against plaintsaid probate court to be guardian of the said Car-iff, and the case stands undisposed of as to Bell oline as a lunatic or person of unsound mind, on the common pleas docket. This is authorized and on that day he gave bond, with sureties, ac- by section 371 of the Code, the action being upon cording to law, which was approved by the court, a joint and several cause of action. and he entered upon the discharge of his duties All the parties to this final judgment are beas such guardian.

fore this court. " That during the time the said Bell was so act- 2. The petition alleges the delivery of the bor ing as guardian, as aforesaid, there came to his and its approval by the court, as in all like cases. hands, of the moneys and estate of said Caroline, Hence the claim that there was no delivery of the sum of five thousand dollars or more; that the the bond is not well founded. said Bell having on the 14th day of October, 3. Neither is the claim that there is a want of 1874, filed his final account as such guardian in consideration for the bond, if it is otherwise said probate court that there was, and in fact there valid. If the court had the power to take and then was in the hands of the said Bell, of the moneys approve this bond, the consideration is sufficient. aforesaid, the sum of four thousand one hundred 4. The principal, and, indeed, the only ques

tion of difficulty in the case, is as to the author- 4., October 14, 1874, in pursuance of the order ity of the court to take this bond.

of court, he filed his final account, which was Bell was appointed guardian February 4, 1856. audited and settled November 24, 1874, showing The statute vested in the probate court exclusive a balance due his ward of $4,126.84, which he jurisdiction to appoint and remove guardians, to was ordered to pay over to plaintiff, but has direct and control their conduct, and to settle failed to do so, except a small amount stated. their accounts. Swan R. S. 1854, 753, a. This 5. That prior to the giving of the present bond, power embraced the appointment of guardians April 3, 1871, he had received $5,000 or more of for minors (Swan R. S. 1854, p. 444), and idiots his ward's moneys, and had in his handls, in fact, and lunatics. S. & C. 847.

said sum of $4,126.84 at the date of his final In the appointment of guardians for lunatics, settlement, which, on demand, he refused to pay all laws relating to guardians for minors, and over. their wards, and pointing out the duties, rights We have not been furnished with a copy of and liabilities of such guardians and their sure- the judgment of the court, making the appointties, in force for the time being, are made appli- ment of Bell in 1856, but it is averred that Bell cable to guardians for idiots and lunatics, and was then appointed guardian of the said Carotheir children, so far as the same are in conform-line F. Cooper, who was then an infant, and, as ity with the provisions of the act relating to the plaintiff was informed and believes, a person lunatic asylums. S. & C. 840, $45.

of unsound mind; and it is averred there was no The law in force "for the time being," when express adjudication by the court, upon what the bond in suit was approved and filed, relating grounds the appointment was made; that is, to guardians of minors, was the act of 1858. S. whether she was a minor, or of unsound mind, or & Č. 670. By section 8 full power is given the both. court over the bonds of guardians on exceptions The court having jurisdiction on either or on thereto, and upon its own motion it may require both grounds, to make the appointment, its vaguardians to give additional bonds, whenever the lidity cannot be inquired into collaterly, though interest of the ward shall demand.

the record is silent as to the particular ground Section 9 provides that “No bond executed by upon which the appointment was made. Shroyer a guardian after this act shall take effect” (July v. Richmond, 16 Ohio St. 455. Neither upon this 1, 1858) “shall be void or held invalid on ac- state of facts does the presumption arise, that count of any informality in the same, nor on ac- the appointment was made solely on the ground of count of any informality or illegality in the appoint- | infancy. ment of such guardian; but such bond shall have For over seven years after the ward's majority, the same force and effect as if such appointment Bell acted as guardian of a lunatic. The court had been legally made and such bond executed so recognized him as her legal guardian by rein proper form.". The bond in suit is subject to ceiving and settling his accounts, by ordering the provisions of this section.

and approving a new bond and allowing him to The facts admitted by the demurrer are: continue to act, though the record showed she

1. That in 1856, Bell was duly appointed and was over age, by accepting his resignation and qualified as guardian of Caroline F. Cooper, who appointing his successor as guardian of a lunawas then both an infant and a person of unsound tic. All this is utterly inconsistent with the mind, and entered upon the discharge of his du- presumption that the appointment was made on ties as such guardian, and so continued to act un- the ground of infancy alone, but is in harmony til his resignation, which was accepted by the with the presumption that the judgment of the court September 16, 1874, and the present plaint- court, by which he was appointed, was either iff was appointed his successor as guardian of based on the unsoundness of mind, or of that, as said Caroline, a lunatic.

well as infancy. 2. That at her arrival of age, April 20, 1867, In the absence of an express adjudication of she was still of unsound mind, and without any the grounds for this appointment to the contrary, further action of the court, so far as the record and in view of the fact that, after the ward arshows, Bell continued as guardian, and in 1867, rived of age, the court continued for several 1869 and 1871, filed his accounts as such with years to judicially recognize him as the legal the court, which were audited and settled; the guerdian, we are authorized to presume that this court in all respects recognizing and treating appointment covered both disabilities, the luhim as the legal guardian, as well after as before

nacy as well as the infancy. her majority.

This being so, the court was authorized hy sec3. That in April, 1871, nearly four years after tion 8 of the guardian act to order and approve her coming of age, Bell represented to the court this bond. that his sureties had removed from the county, and on his application and upon an order of the

The condition being for the faithful discharge court requiring it, he and the present defendants

by Bell of his duties as such guardian, as reexecuted and delivered the bond in suit, which

quired by law, his sureties are liable thereon for

a breach of the condition. was, on his motion, approved and filed, whereupon he was permitted by the court to continue his Judgments of the district court and of the guardianship until his resignation and the ap- court of common pleas reversed. pointment of his successor.

[This case will appear in 36 0. S.]

V.

t.

SUPREME COURT OF OHIO.

assignee, to pay over to his successor the amount

of the trust estate, found to be in his hands, and PHILLIPS, ASSIGNEE,

which the probate judge, on his removal, ordered

him to pay over, was a clear neglect of duty, for Ross, ET AL.

which he and his sureties were liable on his bond,

and liable, we think, to the plaintiff. The plainWhere a probate judge removes an assignee in trust for tiff was the representative of all persons entitled for the benefit of creditors, and orders him to deliver to i to the fund to be distributed, and, within the his successor the property and effects in his hands belonging to the trust estate, which order he fails to comi

meaning of the statute, was a person injured by ply with, an action will lie upon the bond of such as- the failure of Ross to pay over the fund in his signce, in favor of his successor, to recover the damages i hands, belonging to the trust estate. resulting from the failure to comply with such order. Error to the District Court of Muskingum of common pleas reversed, and cause remanded

Judgment of the district court and of the court County.

to the common pleas for further proceedings. In June, 1861, E.E. Henderson, by deed of that

[This case will appear in 36 0. S.] date, conveyed and assigned all his property to James P. Ross, in trust for the benefit of his cred

SUPREME COURT OF OHIO. itors. Ross accepted the trust and executed the bond required by section 1 of the act regulating ! THE STATE OF Ohio on relation of CHARLES PARthe mode of administering assignments in trust

ROTT AND OTHERS for the benefit of creditors (1 S. & C. 709), with his co-defendants, John Bell and James M. Lane, as THE BOARD OF PUBLIC WORKS OF THE STATE OF his sureties.

Оно. . On May 29, 1866, Ross filed a statement of his account in settlement of his trust in the probute 1. The special appropriation act of May 13, 1878 (75 Ohio court, and upon exceptions thereto, the court L. 339), whereby the board of public works was limited found a balance of $766.44 in his hands for dis

to $20,000 of the appropriation from the general revenue

in the purchase of dredges, &c., required to keep the pubtribution among creditors. Failing to account lic works in repair, was not intended as a limitation upon for this sum the probate judge subsequently re

the power to purchase implements necessary to keep the moved him, as assignee, and appointed the plain

works in repair, as conferred upon the board by the act

of April 4, 1859 (Revised Statutes, 1901), nor upon the tiff in his stead, and ordered said Ross to pay power of the board to use the incoine of the public works, over to the plaintiff the said sum of money, and arising froin tolls, fines and water rents, for the purchase interest thereon, from the date of said settle

of such necessary implements, as appropriated by such

special act. And although the appropriation thus made ment.

expired, by constitutional limitation, at the end of two Upon the failure of Ross to comply with such years, a like appropriation was made in the general aporder the plaintiff brought an action upon said

propriation act of 1880.

2. The board of public works having purchased from bond to recover said sum and interest." To the the lessees of the public works certain dredges, etc., for petition setting out the facts, the defendants $38,820, to be paid as follows: $20,000 in hand, and Bell and Lane demurred for want of facts suffi

balance in equal payments at three and six months, and

being afterward advised, and beleiving that the promise cient to constitute a cause of action. The court to pay in excess of $20,000 was unauthorized and void : of common pleas sustained the demurer, and Resolved, to pay on such contract the said sum of $20,000,

leaving it to the lessees to obtain a ratification of the condismissed the petition, and the district court af

tract by the general assembly, and an appropriation to firmed the judgment. To, reverse these judg- pay the balance; and, thereupon, the lessees, with knowlments is the object of this proceeding in error. edge of said resolution, accepted the $20,000. Held, That

the lessees were not thereby precluded from demanding T. J. Taylor, for plaintiff in error.

payment from the board, in accordance with the terms L. P. Marsh, for defendant in error.

of the contract. BY THE COURT.

3. The state is not bound by the terms of a general

statute, unless it be so expressly enacted. Section 14 of the act regulating the mode of 4. In the absence of a statute requiring it, or a promise administering assignments in trust for the bene- to pay it, interest cannot be adjudged against the state fit of creditors (1 S. & C. 712), authorizes the pro

for delay in the payment of money.

5. In a proceeding in mandamus, where judgment is bate judge to remove the assignee for good cause, given for the plaintiff, section 6753 of the Revised Statutes and to appoint another in his stead, and to make does not authorize the assessment of damages against the and enforce all orders necessary to cause the

state in favor of the relator.

Mandamus. property and effects belonging to the trust estate to be delivered to the newly appointed trustee.

Previous to the year 1861, the public works of the state Section 1 of the same act, requires the trustee to

were under the exclusive control of the board of public whom the debtor's property was assigned to en

works. During that year, the public works were leased

to the relators for a term of ten years, which was afterter into an undertaking payable to the State, in

ward extended ten years more. In 1878, the lessees havsuch sum and with such sureties as shall be ap

ing abandoned the public works, because of an alleged proved by the probate judge, conditioned for the

violation of the contract of lease, the general assembly, faithful performance, by said trustee, of his du

by joint resolution adopted May 11, required the board of ties according to law, and authorizes an action to

public works to take immediate possession thereof. On be brought on said undertaking against the as- the 18th of the same month, the board, being in possessignee and his sureties, by any person injured by sion of the works, entered into an agreement with the the misconduct, or neglect

of duty, of the assignee lessees for the purchase of dredges, boats, tools and other in regard to said trust. The failure of Ross, the implements necessary to keep the public works in repair

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