Reither v. Murdock
Before: Van Dyke
Synopsis
Principal and Surety—Administrator’s Bond.—The general rule is, that the liability of the sureties on the bond of an administrator or guardian depends on the liability of the principal, and does not attach until the latter has been ascertained and determined by a court of competent jurisdiction.
Id.—Removal op Absconding Administrator—Ex-P arte Accounting by Successor—Decree not Conclusive.—Where an administrator was removed, as having absconded without an accounting, and subsequently, in a proceeding to which he was not made a party, the newly-appointed administrator rendered an account, ex parte, purporting to embrace moneys and property unaccounted for by the removed administrator, neither he nor his sureties are bound by the decree settling such account.
Id.—Authority op Attorney to Appear—Unsupported Finding.— Under an issue raised by the pleadings, as to whether authority was given by the removed administrator to an attorney to appear for him upon the settlement of the accounts of his successor, it required affirmative evidence to support a finding as to such authority; and, in the absence of such evidence, the finding is unsupported.
Id.—Authority to Bind Client.—An attorney cannot bind a client by any of the steps in an action or proceeding, except by his agreement, filed with the clerk, or entered upon the minutes of the court.
Id.—Parties to Accounting—Appearance by Attorney for Behoved Administrator.—The removed administrator, not having been a party to the accounting, an attorney could not appear for him, so as to bind him by the decree settling the account of his successor.
Id.—Limited Jurisdiction op Probate Court—Settlement op Accounts—Statutory Mode.—The probate court has only a limited and statutory jurisdiction; and can only settle the accounts of administrators or guardians in the manner prescribed by the code.
Id.—Absence or Death of Principal—Ascertainment op Liability— Civil Action—Parties.—Where an administrator or guardian dies or absconds, or is beyond the jurisdiction of the court, the proper method, in order to ascertain whether he is liable, so as to bind the sureties on his official bond, is by a civil action, in which the sureties must be made parties, and have an opportunity to be heard.
Opinion
This is an action upon an administrator's bond against the defendant Murdock, as administrator, and the other defendants, as sureties on his bond. The appeal is taken by the defendant Whitney, one of the sureties. The action was dismissed as to the defendant Murdock, and default entered as against Frutig. The main contest in the court below, on the part of the defendant Whitney, was, that it never had been ascertained that an account of defendant Murdock, the administrator, had ever been rendered or settled by the court, and hence, as surety, he was not liable. This is also the main contention on the appeal. The general rule is, that a liability of a surety on an administrator's or guardian's bond depends upon the liability of the principal, and does not attach until that has been ascertained and determined by the judgment of a court of competent jurisdiction. This rule has been repeatedly announced and affirmed in this court. (Allen v.Tiffany, 53 Cal. 16; Chaquette v. Ortet, 60 Cal. 594; Spencer v.Houghton, 68 Cal. 82.)
David Murdock was appointed administrator of the estate of his father, John Murdock, in May, 1894, and executed the bond on which the suit in question is brought, as such administrator. In April, 1896, the probate court issued a citation, demanding of said David Murdock that he present and file an account. It is recited in the findings that on the eighteenth day of March following, W.A. Bowden, an attorney of said court, appeared as attorney of Murdock, and in open court represented and stated that said Murdock had absconded and could not be found. Thereupon, on the 18th of March, 1896, the court made an order revoking his letters of administration, and appointed the plaintiff, Jacob Reither, administrator of said estate of John Murdock, deceased. Reither qualified and entered upon the discharge of his duties as administrator on the 6th of April, 1896. Thereafter, on January 12, 1897, Reither, as such administrator, filed an account, verified by himself, purporting to embrace moneys *Page 199 and property unaccounted for by said David Murdock, the former administrator. The findings state that such account was set down for hearing, and thereafter continued until the _____ day of February, 1897; and also it is found that, before the continuance, and at the hearing of said account, William A. Bowden, the attorney of said administrator, appeared in open court for the said David Murdock, the former administrator of said estate; and that thereafter the account was referred to a referee, who stated an account and reported the same, upon which the court adjudged David Murdock, as administrator of said estate, was indebted to the same, over and above all credits, in the sum of $1,467.31, and the said David Murdock was ordered forthwith to pay over the same, which he failed to do.
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