United States Fidelity & Guaranty Co. v. Parker

Potter, Justice.

(Concurring.) The questions involved are important, and the one relating to the jurisdiction of a district court of this state to entertain the action at all does not seem to have been decided in any case presenting the same facts, but there are several reported cases which by analogy are in point, and suggest the principle upon which the jurisdiction may and ought to be sustained. I desire, therefore, to record as briefly as possible some of the reasons for my concurrence,, though I do not understand that my views differ in any material respects from those of either of my associates, but believe that we are of one mind as to the controlling reasons for the conclusions announced. What I shall say is intended to apply also to the case of the same plaintiff in error against Ira W. Nash, as guardian of Jennie Mabel Simpson, so far as the matters discussed are involved in that case, and will to that extent explain my concurrence in the opinion and conclusion therein.

The objection .to the jurisdiction of the court to entertain the action presents, I think, the principal question in the case. Upon an examination of the authorities, intended to be exhaustive, and a consideration of the principles relating to the subject as applicable to the facts of the case, we a're all convinced that the objection to jurisdiction cannot be sustained upon any reasonable ground. First, as to the necessity for a previous accounting, and the general rule requiring an accounting and settlement of the guardian’s accounts in the court where he was appointed as a condition precedent to an action upon his bond. The theory upon which that rule is based is said to be that it is the policy of the law to hold the remedy on the official bond in a court of law, subject to the action of the tribunal established to adjust the accounts of the party who by his default is alleged to have forfeited his bond. (21 Cyc. 242.) And it follows the rule early applied to suits upon the bonds of executors and .administrators. The rule was held not to be applicable to a guardian’s bond in Call v. 'Ruffin, 1 Call. Va. 333; but by the weight of authority it seems to be now held to apply *57to a suit upon such bond. It is at once apparent that there must be exceptions to the rule when we consider the reason for its adoption. Rules of law regulating civil actions are 'not promulgated to defeat justice, or to render its administration difficult or inconvenient, but to reasonably aid in protecting and enforcing rights; and it is a familiar principle that courts will not require the doing of a useless thing before proceeding to enforce a right, and certainly an impossible thing will not be required. It is not shown that under the laws of Montana the administratrix of the deceased guardian's estate would have been permitted as of right or otherwise to render an account in the guardianship proceedings, or that she could have been cited to render such an account, and there is nothing in our statutes justifying the presumption of the existence of such a law. On the contrary it appears that an ordinary action was allowed to be maintained in that state by the ward who had attained her majority against the administratrix to recover a judgment against the estate for the amount of the guardian’s indebtedness to her at the time of his death. It is held in California that an executor of a deceased guardian has no authority under the laws of that state to present the guardian’s account to a court of probate. (Miller v. Ash, 105 Pac.' 600.) And counsel for plaintiff in error state in their brief that the probate code of Montana is largely taken from California. It is also held in the casé cited that it is not necessary that there should have been an action for accounting against the executor as a condition precedent to maintaining a suit to establish a claim by the ward against the guardian’s estate. The guardian, is dead and his estate is insolvent. If not impossible, it would be at least a useless proceeding to go through the form of attempting an accounting and settlement of the affairs between the guardian and ward in the original guardianship proceedings in the absence of a report of the transactions of the guardian or authority to exact from anyone the filing of such a report, especially where under the circumstances the whole matter can as well *58be determined, and with as much protection to all parties, in a suit for accounting or upon the bond. The authorities cited by Judge Scott on this question as well as many others are clear and announce we think a reasonable proposition, as a proper exception to the general rule upon the facts'. It was well said in Mitchell v. Kelly, (Kari.) 107 Pac. 782, in considering an action like the one at bar, and the objection that a settlement of the guardian’s accounts in the probate court is a condition precedent to recovery against the surety: “The guardian used up the money of his infant wards, is dead, and left no estate from which they may be reimbursed. His sureties must pay, and the enforcement of their liability ought not to be fettered by rules based upon any considerations except those of substance.”

Second, as to the right to maintain the action in this state. It does 'not appear that the laws of Montana provide a special remedy on the bond or a special proceeding for enforcing the liability thereon, which would exclude the general jurisdiction,of a court of law or equity. The district court in which the suit was brought has full and complete law and equity powers; and in this state the distinctions between actions at law and suits in equity, and the forms of all such actions and suits formerly existing are abolished, and but one form of action is substituted called a “civil action.” The district court, therefore, has jurisdiction of the subject matter, unless jurisdiction of an action of this kind upon the facts exists only in the courts of the state wherein the guardian was appointed. The wards removed to this state, the plaintiff here is of age, and a guardian was appointed in the state by the proper court for the minor ward represented in the other case. Had the guardian also lived and removed to this state with the property of the wards or its proceeds, or before or after coming here had sold the property and converted the proceeds to his own use, it is well settled by the authorities that he could have been sued and compelled to account in the courts of this state. (21 Cyc. 272; McNamara v. Dwyer, 7 Paige Ch. *59239, 32 Am. Dec. 627; Moore v. Flood, 9 Rich. Eq. 311, 70 Am. Dec. 210; Pickering v. De Rochemont, 45 N. H. 67; Leverich v. Adams, 15 Ia. Ann. 310.) And in the case of Moore v. Hood, supra, the action was held maintainable against the guardian and his sureties. The same rule applies under like circumstances in the case of an executor or administrator, notwithstanding a contrary statement in section 514b of Story’s Conflict of Laws. Such a suit against an executor and administrator is held maintainable' upon the theory that it is not an action against one in his official capacity, but against one who has withdrawn himself from the court having power over him, and is unlawfully in possession of property which is to be protected or adjudged to its lawful owner. (1 Woerner’s Amer. Law of Adm'n., sec. 164; 8 Ency. Pl. & Pr. 71$; McNamara v. Dwyer, supra; Palke v. Terry, 32 Colo. 85, 75 Pac. 425; Turnstall v. Pollard’s Adm’r., 11 Leigh, 1; Cureton v. Mills, 13 S. C. 409, 36 Am. Rep. 700; Patton v. Overton, 27 Humph. Tenn. 192; Greenhood v. Greenhood, 143 Ala. 440; Colbert v. Daniel, 32 Ala. 314; Keiningham v. Keiningham’s Ex’r., (Ky.) 71 S. W. 497; Cutrer v. State of Tennessee, (Miss.) 54 So. 434.)

McNamara v. Dwyer, supra, is recognized as the'leading case on this subject. In that case it was alleged that Dwyer had been appointed administrator of an estate in Ireland, that he had converted a large amount of the personal estate into money, brought it into the State of New York, and misapplied it in private speculation. The suit was by an heir for an accounting and .distribution of the estate. In the opinion by Chancellor Walworth sustaining the right to maintain the suit in New York, it was .said: “Certainly, if a guardian appointed in one of our sister states should come into this state with the property of his ward, or after he had squandered the same, or appropriated it to his own use, in the state where he received his appointment, there could'be no reasonable doubt as to the jurisdiction of the court; to compel him to account for and pay over to his ward what *60was justly due according to the laws of the state in which he assumed the trust. And I confess I see no reasons for giving such a remedy here, in the case supposed, which would not be equally applicable to the case of an executor or administrator coming into this state and bringing with him the property which had been confided to him as trustee for the creditors or next of kin of the decedent.”

Moore v. Flood, supra, was a case brought against a guardian and his surety by the wards for an accounting-under the following circumstances: Hood was appointed guardian by a court in North Carolina, and there applied for and obtained an order of sale of the property of the wards, and sold the same. The jurisdiction of the court in South Carolina to entertain the action was challenged. The court by Wardlow, Chancellor, said: “The objection to the jurisdiction of the court, presented by the third ground of appeal, lacks even plausibility. The suit is for account by wards against their guardian and his surety, who had also been executors of the.estate from which the property of the plaintiffs now in controversy was derived; and account is one of the most general heads of jurisdiction in this court, and most commonly exercised, as in the present instance, in suits by beneficiaries against trustees. It is immaterial that the trustee here was invested with his powers and duties by a foreign tribunal; for surely his fiduciary relation is not terminated by removal of himself and the trust funds beyond the limits of the state in which he was appointed. It would disgrace the courts of any civilized country to afford immunity to a trustee who fled to their jurisdiction that he might embezzle the funds committed to his trust. This suit is not on the bond of defendant as the gist, such as an action of debt, which can be prosecuted only in the court of common pleas. It is a bill for account, in which the bond is used merely as collateral evidence of the defendant’s liability.”

The case of Leverich v. Adams, supra, involved the following facts: The plaintiff sued as curator or guardian of a *61minor. Adams, who had married the mother of the minor, had been appointed the minor’s guardian by a court in Mississippi, where he resided at the time. Thereafter he removed with his wife to Louisiana, thereby changing the domicil of the minor. He obtained possession of certain effects of his ward and it was sought to charge him for a misapplication thereof. Upon the contention that the action should be prosecuted, if at all, against him and his surety in the state where he was appointed, the court say: “It is a matter of no moment in this case, whether the authority granted by the Mississippi courts terminated on the removal to this state or not; for, if he continued to be tutor, he was bound to account under our law, and the minor became entitled to his tacit mortgage for the security of the trust. If the office terminated, he became a negotiorum gestor, and the minor was also entitled to call him to account. * * * * It cannot for a moment be admitted that a party who has a personal demand against another shall be sent to a foreign state or jurisdiction for redress.”

In Cutrer v. Tennessee, supra, the suit was brought in Mississippi to enforce a liability upon an administrator’s bond given in Tennessee, for an alleged conversion of funds by the administrator. The court say: “It appears from the bill in' this case, which bill stands confessed by the demurrer, that the administrator is insolvent, that he resides in this state and brought the funds into this state and converted it to his own use, that two solvent sureties on the bond live in this state, and the third surety lives in Tennessee. Whether this third surety is solvent or insolvent does not appear. The complainant also resides in this state. Under these circumstances we have no hesitancy in declaring that the courts of this state are vested with full jurisdiction to entertain the suit to recover this fund, and there is a multitude of authority to this effect. To hold otherwise, as is said in many of the cases that we shall herein cite, would often result in a total failure of justice, a result always to be shunned by the courts.”

*62A suit was brought in New Hampshire for money had and received. The facts as well as the conclusion are sufficiently stated in parts of the opinion which will be quoted, and will show the application of the case to the point now being considered. “Again, it is objected that, -as the auditor’s report shows that the money was received by defendant in trust and as guardian for said Sophia, no action at law can be maintained until some settlement of accounts as trustee, or guardian, is shown, and that the remedy must be either in the court pf probate, or in equity. Any proceedings in a court of probate are out of the question here. If defendant was ever appointed guardian of this plaintiff, Sophia, it was in a foreign country, from which both the guardian and ward have -removed permanently. Our probate court has no jurisdiction of the matter. There can be no doubt that the most appropriate proceeding would have been a bill in equity, praying for a discovery, and also for an account in all matters where defendant had received property in trust, in any way, for the plaintiff, Sophia, before marriage whether as guardian, as bailiff, or as. receiver, and for all services rendered, and praying for a decree for the payment to the plaintiff of all sums thus found due. * * * The question here is not what would have been the best course for these plaintiffs to have pursued, but can this suit for money had and received be maintained at all? * * * In its leading features this trust is very nearly like the one in Case v. Roberts, supra, where it was held that an action for money had and received would lie to recover the balance of the mone}'- which the plaintiff. had entrusted to the defendant for a particular purpose, after that particular object had been accomplished and the trust ended. In this case, as in many others, the action for money had and received is in the nature of a bill in equity. * * * When the declaration in this case is amended so as to correspond with the specification and proof, which amendment may bé allowed on terms, the plaintiffs may maintain their action for money had and received, to recover whatever money re*63mains in defendant’s hands, which upon a fair settlement, belongs to plaintiffs. (Pickering v. De Rochemont, 45 N. H. 67.)

It being the well settled rule, then, that if the guardian had lived and removed to this state he could have been called to account in the courts of this state for the property of the ward converted by him to his own úse, there appears to be no substantial reason for holding that a different rule must prevail when he is dead as to a suit brought against the surety on his bond who resides here or is amenable to the process of our courts. And in Cutrer v. Tennessee, supra, it was held that the same reasons which warrant the suit against the administrator apply to suits against the sureties on his bond.

In the case of Carpenter v. Soloman, (Tex.) 14 S. W. 1074, it was held that upon the termination of the guardianship of a female ward by her marriage, she could sue upon the guardian’s bond in the county of his residence, though he was appointed guardian by the court in another county, and had not been formally discharged by that court. The court say: “Apellant Cora, upon her marriage, was no longer a ward of the appellant Soloman, and could sue him in any court having jurisdiction of the amount for the recovery of money belonging to her, which he had obtained by virtue of said guardianship, without regard to whether or not he had been formally discharged by the court having jurisdiction of said guardianship.” That case is in point here to the extent that it sustains the right to maintain the action upon the guardian’s bond in any court having jurisdiction of an action of that character and of the amount involved; and that it was not necessary to sue in the county where the guardian was appointed. I conclude then upon this question that if the guardian had been alive and resided in this state he and his sureties might have been sued, upon the facts alleged and shown in this case, in this state, in the District Court within the county wherein'jurisdiction of the person could have been properly obtained; arid that the guardian *64being dead, the suit may, under the circumstances, be maintained in this state against the surety.

With reference to the judgment obtained by Mrs. Parker in Rosebud County, Montana, I have this to say. As already stated a showing of a previous, accounting in the court which appointed the guardian or in any other court of the same state was not necessary as preliminary to the right to maintain this action. But the fact that said judgment had been secured against the administratrix of the estate of the deceased guardian was alleged in the petition, and so far as the surety would have been benefited by a previous accounting, it would seem that no more could be insisted upon than was done by establishing the claim against the guardian’s estate through the judgment of a competent court. (21 Cyc. 242.) -The trial court appears to have held the plaintiff bound by that judgment, by limiting her recovery to the amount thereof with interest. I agree that the surety was also bound thereby, to the same extent that it would have been bound by the final result ascertained and declared upon an accounting in the guardianship proceeding, or in a suit against the guardian for the same purpose. But the plaintiff produced other evidence in support of her claim which would have sustained a finding in an amount at least equal to the amount of the judgment.