United States Fidelity & Guaranty Co. v. Sullivan

VALLÉE, J.

Appellant here, defendant below, appeals from a summary judgment for plaintiff in an action on a foreign judgment.

The pertinent facts alleged in the complaint are these: Defendant, from about October 15, 1937, to about August 11, 1942, was guardian of the estate of a minor appointed by the Superior Court of Arizona. Plaintiff was surety on defendant’s bond as guardian. About August 11,1942, while the bond was in effect, the Superior Court of Arizona found that defendant as guardian was in default and indebted to the estate in the sum of $13,949.83 and rendered a judgment in that amount in favor of the estate and against defendant. Plaintiff as surety paid $14,024.83 to the estate in satisfaction of the obligation and accrued interest. The Arizona judgment was duly assigned to plaintiff by a successor guardian. No part of the judgment has been paid.

The answer among other things denies “that any judgment in favor of plaintiff and against this defendant, or any part of any such judgment, is due and payable.” On the hearing of the motion for a summary judgment in addition to the pleadings two affidavits were before the court, one by an assistant claims manager of plaintiff and one by defendant. The affidavit of the claims manager stated with particularity the facts alleged in the complaint. It appears from the judgment, which is attached to the affidavit, that the $13,949.83 consisted of bonds and other items. The affidavit of defendant stated these matters: The bonds described in the Arizona judgment as not having been accounted for or turned over by defendant as guardian were taken by his former wife without his knowledge or consent while he was acting as guardian. She converted them to her own use and benefit and did not return them or their value to him. The successor guardian, represented by an agent of plaintiff, brought suit against his former wife and dismissed it with prejudice without explanation.

[561]

Plaintiff failed to institute suit against the former wife but settled the claim against her for the bonds without the knowledge or consent of defendant, “and received a portion or all of said bonds or the equivalent thereof from her, and said plaintiff did not credit said amounts, or any amount to this defendant on the alleged judgment against affiant or make any allowances to affiant whatsoever. ’ ’

The issue to be determined by the trial court upon a motion of a plaintiff for a summary judgment is whether the defendant has presented any facts which give rise to a triable issue or defense and not to pass upon or determine the issue itself.