Chaquette v. Ortet

Ross, J.: Eugene Herteman died intestate. T. A. Mitchell was appointed administrator of his estate, and the appellant became surety on his bond. Mitchell died intestate, without having filed any account of his administration of Herteman’s estate, and Elizabeth Mitchell was appointed administratrix of the estate of T. A. Mitchell. Subsequently a bill in equity was filed by the respondent herein, as administrator of the estate of Herteman against Elizabeth Mitchell, administratrix, for an accounting of the doings of T. A. Mitchell as administrator of the estate of Herteman. To this bill the sureties on the bond of Mitchell, including the appellant, were made parties. [599]The sureties (including the appellant) demurred to the bill, and objected to being joined with the administratrix in the action, which objection was sustained by the Court, and, thereupon, they were dismissed therefrom. The action proceeded against the administratrix, and resulted in a decree stating and settling the account, by which it was ascertained and determined that the estate of Mitchell was indebted to the estate of Herteman in the sum of eight thousand four hundred and eighty-two dollars and fourteen cents, in gold coin of the United States, for money received by Mitchell as administrator of the estate of Herteman, with interest, over and above all just charges, claims, and disbursements; and judgment was entered in favor of the plaintiff for that sum. In the complaint in the present action, which is brought against Mitchell’s sureties, it is averred that the judgment just mentioned is in full force, and that no payment thereon or upon the indebtedness of Mitchell to the estate of Herteman has ever been made, but the whole thereof remains unpaid; that the estate of Mitchell is insolvent, and that there has never been any property of his estate available for the payment of said indebtedness, and that the plaintiff has exhausted all means at his command to collect the said indebtness from his estate, but has been unable to do so; and these averments stand admitted by the pleadings. The Court below held the decree in the case of the administrator of the estate of Herteman against the administratrix of the estate of Mitchell conclusive against Mitchell’s sureties; and this ruling constitutes the principal ground of the appeal.

The liability of the surety depends upon the liability of the principal, and does not attach until that of the latter has been determined by the judgment of a Court of competent jurisdiction. During the life-time of the administrator, the surety could not be sued until the status of the account had been fixed by decree of the Probate Court. (Allen v. Tiffany, 53 Cal. 16.) But when the liability of the principal thus became fixed, that of the surety also attached, and upon the failure of the principal to pay the money, an action could have been maintained against the surety. In such case the decree of the Probate Court would have been conclusive upon the status of the account, as respects the sureties as well as