[1] On February 23, 1954, plaintiff in error, Mae Harrison, was appointed the guardian of the person and estate of Ada Belle Durnell, an incompetent person who died in November, 1961. In June, 1963, the county court approved the Final Account and Supplemental Final Account of the guardian. On appeal to the district court, the guardian was surcharged the sum of $24,816.06 and this appeal was perfected from the order overruling the motion for a new trial. The plaintiff in error will be referred to as Guardian and defendants in error will be referred to as Protestants.
[2] Guardian first contends the trial court erred in refusing a continuance to allow her to bring in vouchers; in failing to rule on her motion to reopen; and in failing to reopen. *Page 907
[3] These contentions are premised on the general proposition that Guardian had the necessary vouchers and receipts and would have produced the same if the court had granted her the necessary time.
[4] In determining these issues we find that an objection was first filed on January 3, 1963, and contained therein were numerous detailed items objected to. While the cause was pending in the county court Protestants filed a request that the accounts be supported by checks or vouchers as provided by law, and also filed a Request for Specific Findings of Fact and Conclusions of Law wherein there was itemized several transactions concerning their objections. On June 7, 1963, the county court entered its order approving the final and supplemental final account of the Guardian.
[5] On August 7, 1963, a pre-trial conference was had in the district court proceeding and the cause was set for trial on October 24, 1963. Guardian was called as the first witness and she testified that the final report and supplemental report were prepared at her request and under her supervision. On cross examination, Protestants offered numerous exhibits disclosing that several items of income and assets of the estate had not been accounted for. A few minutes before the noon hour, Protestants stated to the court that it was incumbent upon the Guardian to produce vouchers, as required by statute, to prove her claim and asked leave of the court to serve a subpoena on the Guardian for the production of vouchers so that the same would be available at 1:30. Her attorney then stated it was physically impossible for him to be there but that he intended to introduce every check and every bank statement the Guardian had from the time of her appointment. The court recessed until 1:00 P.M. A subpoena duces tecum was served on the Guardian directing her to produce all the bank statements, deposit tickets and cancelled checks. During the proceedings concerning the production of such records her attorney advised the court that the majority of the records were in his office. The court stated that it would recess the case for an hour but it would not direct the production of such records because it felt it was incumbent upon the parties to make their own case. Guardian's attorney stated that he was physically unable to produce the records in such time and that if the court would grant a continuance that he could produce them.
[6] The record does not disclose that Guardian attempted to comply with the provisions of Title 58 O.S. 1961 § 550[58-550], by producing vouchers to support her accounts although in Protestant's Objections and Request such statute was specifically called to the attention of the Guardian and that Protestants expected compliance with the same. Protestants clearly called to the attention of the Guardian the various contested items and it could not be said that she was surprised in the items challenged or did not have reason to believe that it was incumbent upon her to produce the necessary vouchers and records to support her accounts. Guardian knew well in advance the challenged items before the hearing before the county court and approximately two and one-half months elapsed between the time the district court set the trial date at a pre-trial conference to the date of the trial. On the date of the trial, Protestants were ready with their evidence and challenged the accounts by offering numerous exhibits and several items of income which were unaccounted for in the final accounts.
[7] In Sanditen v. Brooks Flame-Spray, Inc., Okla., 403 P.2d 471, we held that the ruling of the trial court on a motion for a continuance will not be disturbed on appeal unless there has been a clear abuse of discretion. To follow Guardian's argument to its ultimate conclusions would be, in effect, that it is not necessary for a Guardian to comply with the provisions of Title 58 O.S. 1961 § 550[58-550], in rendering an account, but if a protest is filed and evidence is submitted which challenges the correctness of such account, the Guardian is entitled to a continuance, as a matter of law, to refute the evidence offered by the Protestants. *Page 908 We do not place such a construction on Sec. 550, supra.
[8] In our opinion, the Guardian knew the challenged items in the accounts and knew that she would be required to produce vouchers to support her accounts, and had ample time to prepare her case and have her evidence ready for submission. We can only conclude that the trial court did not abuse its discretion in refusing to grant a continuance.
[9] On December 31, 1964, the trial court overruled all motions pending before the court and one of these motions was Guardian's Motion to Reopen. Therefore, we can not hold that the trial court did not rule on Guardian's motion to reopen. This is further substantiated by the fact that Guardian argues that the court erred in overruling such motion. In Banta v. Banta, 202 Okla. 86,210 P.2d 346, we held that a request to reopen a case for the introduction of additional evidence is addressed to the sound discretion of the trial court, and its ruling thereon will not be disturbed by this Court unless it clearly appears that the trial court abused its discretion. See also City of Mangum v. Brownlee,181 Okla. 515, 75 P.2d 174, where we said that the failure to use due diligence to procure evidence justifies the court's refusal to reopen.
[10] In our opinion, the same reasons advanced for holding that the trial court did not err in failing to grant a continuance are applicable to the trial court's failure to reopen. We therefore conclude the trial court did not err in failing to reopen.
[11] The Guardian next contends that irregularity of the district court appeal prejudiced the plaintiff in error, and prevented an adequate review by this Court, or the ascertainment of the facts by the court below. We cannot sustain this contention because in our opinion there was no irregularity in the proceedings which prevented an adequate review by this Court, or the ascertainment of the facts by the court below. The Guardian offered no evidence that was denied admission which was admissible. She did not offer evidence which if she had, might have made some difference in the outcome of the case or some phase of the case. The trial judge gave the opportunity to her and her counsel to bring in anything that would clarify the Guardian's contentions in the trial before the district court. The Guardian failed to raise this question at any time during the district court trial or at any time prior to the judgment of the trial court.
[12] The Guardian also argues that the evidence fails to sustain the judgment of the trial court. There was evidence before the district court that the Guardian had not accounted for $14,154.34 in assets or income. Included in this item was $8,308.00 which reflected the difference between the amount of U.S. Government Bonds cashed and accounted for in the report. The record further showed that she was surcharged for disallowed disbursements on the annual account from February 24, 1960 to February 24, 1961, in the sum of $3,472.84, and this action was proper under the evidence. There was disallowed disbursement for failure to prove the amount claimed in the sum of $3,078.43 that was on the final account. The Guardian simply failed to prove these items. On the supplemental account there was disallowed the sum of $3,510.45. She also was charged $600.00 for selling to herself the incompetent's car and giving a note to the estate for the same amount which the record shows has not been paid. The total of the surcharges was $24,816.16.
[13] In Hartford Accident Indemnity Co. v. Hembree, 193 Okla. 249,142 P.2d 618, 150 A.L.R. 468, we held that where a final account of a guardian has been presented and considered and surcharges made and disallowed, and an appeal is taken to this Court, the matter will be considered on appeal as an appeal from an equity judgment, and the surcharges made or disallowed will be approved where such action is not clearly against the weight of the evidence. *Page 909
[14] In our opinion the trial court's judgment is based on competent evidence and is not clearly against the weight thereof.
[15] Judgment affirmed.
[16] JACKSON, C.J., IRWIN, V.C.J., and DAVISON, HODGES, LAVENDER and McINERNEY, JJ., concur.
[17] WILLIAMS, BLACKBIRD and BERRY, JJ., dissent.
[18] The Court acknowledges the aid of Supernumerary Judge, HARRY L.S. HALLEY, in the preparation of this opinion. After a tentative opinion was written, the cause was assigned to a Justice of this Court. Thereafter, upon report and consideration in conference, the foregoing opinion was adopted by the Court.