Zurfluh v. Smith

COOPER, C.

On the 16th of January, 1894, the plaintiff (whose name was then Josephine Gerig) was a minor, and Jacob Gebert, deceased, was appointed guardian of her estate. There was at said time in the hands of said guardian $662.83, the property of plaintiff, and he executed his official bond as such guardian, with appellants as sureties. In May, 1899, Gebert died, without having filed any account, and having made no settlement with his ward. The defendant Smith was appointed administrator of the estate of Gebert, deceased.

This action was brought to have the accounts of the deceased guardian settled, and to recover judgment against appellants for the amount found due plaintiff upon such accounting.

The court filed findings, and judgment was entered for plaintiff against appellants for $780.74, the amount found to be due her from her deceased guardian. This appeal is from the judgment and an order denying a new trial. It is claimed,—1. That the complaint does not state facts sufficient to constitute a cause of action; 2. That the judgment does not state the account as against the administrator; 3. That plaintiff should first have filled a bill in equity against the administrator alone, and have had the balance of the account settled by decree, before bringing suit against the sureties; «nil 4. That a money judgment cannot be entered in an equitable proceeding. These objections will be discussed in the order presented in the opening brief of appellants. The objection

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to the complaint is, that it contains no allegation that the sum' has not been paid. This objection goes to the point that the complaint does not allege that the administrator of the deceased guardian has not paid the amount due plaintiff. We do not think such allegation was necessary in this proceeding. The complaint is, in substance, one for an accounting by the defendant administrator, and for judgment against appellants for the amount that may be found due plaintiff by her deceased guardian. It contains appropriate allegations as to the appointment of the guardian, the execution of the bond, with appellants as sureties, and that there came into the possession and control of the guardian the sum of $662.83. That, at the time of the death of the guardian, he held and retained said sum, “and he did not pay the same to this plaintiff, nor. did he use any part of the same for her benefit,” but mingled the same with his own funds and appropriated it to his own use, and had refused and neglected to account for the same to plaintiff up to the time of his death. Judgment is then prayed for an accounting between plaintiff and defendant Smith as administrator, and that the estate of Gebert be charged with the amount found due plaintiff, and that she recover judgment against the appellants for such amount, and for general relief.