Southern Trust & Commerce Bank v. San Diego Savings Bank

KERRIGAN, J. This is an appeal by plaintiff from a judgment in favor of defendant.

[295]The action was brought to recover the sum of three thousand five hundred dollars, alleged to have been wrongfully paid by the defendant upon a check drawn and signed by E. M. Barber, as guardian of the estate of John Wood, an incompetent. From the record it appears that on January 6, 1914, an order was duly made and entered by the superior court of San Diego County appointing E. M. Barber guardian of the person and estate of John Wood, an incompetent person. The order provided: “Now, therefore, it is ordered, adjudged and decreed that E. M. Barber be and he is hereby appointed the guardian of the person and estate of said John Wood, an incompetent person; and it is further ordered that letters of guardianship issue to said E. M. Barber upon his giving a bond to said John Wood with sufficient sureties to be approved by the Judge of this court in the penal sum of ten thousand dollars, conditioned that said guardian shall faithfully execute the duties of his trust according to law.” On January 7, 1914, said Barber presented the bond required by said order, and on the same day it was approved and filed. The condition of the bond reads: “The condition of the above obligation is such that whereas an order was made by the Superior Court of the county of San Diego, State of California, on the 6th day of January, 1914, appointing the above named principal, E. M. Barber, guardian of the person and estate of John Wood, an incompetent person, and letters of guardianship were directed to be issued to him upon his executing a bond according to law in the sum above named; Now, therefore, if the said principal shall faithfully execute the duties of the trust according to law, then this obligation shall be void; otherwise to remain in full force and effect.” Thereafter, and on January 9, 1914, letters of guardianship were issued to said Barber and duly filed.

[1] Section 1754 of the Code of Civil Procedure provides: “Before the order appointing any person guardian under this chapter takes effect, and before letters issue, the court must require of such a person a bond to the minor with such sufficient sureties to be approved by the judge, and in such sum as he shall order,” etc. On January 7, 1914, being the same day on which the bond was approved and filed, but two days before the issuance of letters of guardianship and the taking of the oath, Barber, as such guardian, drew a [296]