Keck v. Keck

KNIGHT, J.

The plaintiff Arthur W. Keck, formerly an incompetent person, brought this action against his wife, Lizzie B. Keck, as guardian of his estate and person, and the sureties on her bond (one of whom has since died) to collect a sum of money shown to be due plaintiff upon the final settlement of the guardian’s accounts. The guardian failed to appear or answer, and a default judgment was entered against her for the amount sued for, to wit, $1896.26, plus interest. But the sureties, whose maximum liability was fixed by the bond in the sum of $1,000, contested the action and the trial court held that as to them the action was barred by the three-year statute of limitations fixed by the provisions of section 1805 of the Code of Civil Procedure (now section 1487 of the Probate Code). Accordingly judgment was entered in favor of the sureties, from which plaintiff prosecutes this appeal.

Section 1805 of the Code of Civil Procedure read as follows: “No action can be maintained' against the sureties on any bond given by a guardian, unless it be commenced within three years

from the discharge or removal of the

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guardian; but if at the time of such discharge the person entitled to bring such action is under any legal disability to sue, the action may be commenced at any time within three years after such disability is removed. ’ ’ (Italics ours.) In the present case all of the court proceedings leading up to the commencement of this action took place in the Superior Court in and for the City and County of San Francisco. They consisted of the following: In 1924 plaintiff was declared incompetent and his wife was appointed guardian of his person and estate in a guardianship proceeding instituted by his wife for such purpose; and in a separate proceeding plaintiff was adjudged insane and committed to the Napa State Hospital. Some two years after the appointment of the guardian and on April 19, 1926, in a proceeding instituted by plaintiff under the authority of section 1766 of the Code of Civil Procedure, he was restored to mental competency, and in the decree rendered therein it M'as “ordered, adjudged and decreed that the guardianship of the person and estate of Arthur W. Keck, as an incompetent is hereby terminated”. Subsequently, and on December 22, 1926, plaintiff filed a petition in the guardianship proceedings for an accounting wherein he again asked for the termination of the guardianship proceeding and on January 18, 1927, an order and decree was made to that effect. Among other things it was therein ordered and decreed that the order heretofore made appointing the said Lizzie B. Keck guardian of the person and estate of said Arthur W. Keck, “be, and said order is hereby revoked”; and it was further ordered that an accounting be had and that the court’s jurisdiction over the guardian be retained until her accounts were settled. In response to such decree and order the guardian filed certain accounts, and on March 27, 1930, there was a final settlement thereof, showing she was indebted to plaintiff in the sum of $1896.26. The present action was filed on December 3, 1930. Thus it affirmatively appears that the action was commenced more than four years after the rendition of the decree of April 19, 1926, terminating the guardianship proceedings, and more than three years after the entry of the decree of January 18, 1927, in the guardianship proceedings revoking the powers of the guardian. Manifestly these decrees and especially the latter operated as a removal of the guardian, and set in motion the statute of