Alanko v. Wayman

ON PETITION FOE REHEAEING.

*200OPINION.

Mr. Chief Justice BLUME

delivered the opinion of the court.

A petition for a rehearing has been filed herein on the grounds that Oliver W. Steadman failed to assign as error that he was held liable for the sum of $5,347.-.59 ($5,000 plus interest), the savings account mentioned in the original opinion and, further, because he *201failed to argue the point. We think, however, that the petition for a rehearing is based upon wrong premises. Steadman filed Specifications of Error, part of which are as follows:

“2. The Court erred in entering an Order assessing a money judgment against the Guardians upon the hearing on Objections to Final Accounting.
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“4. The Court erred in finding that V. L. Wayman, as Guardian, received the sum of $1,900.00 from Emily M. Johnson on April 23, 1949.
“5. The Court erred in finding that Oliver W. Stead-man as Guardian is held to account for money received by his co-guardian, Y. L. Wayman, from the ward, Emily M. Johnson, prior to the appointment and qualification of Oliver W. Steadman as Guardian.”

Specification Number 2 is all-embracing and includes the item of $1,900 as well as the item of $5,347.59. Number 4 relates to the item of $1,900. Number 5 naturally refers to a different item and refers, as we construed it, to the item in the savings account of $5,347.59. That money was received by Wayman, or at least put into his control, under the arrangement of Emily M. Johnson on April 14,1949, which was prior to the appointment and qualification of Oliver W. Steadman as guardian as mentioned in Specification Number 5.

It is claimed that Mr. Steadman did not argue his non-liability of the item of $5,347.59. We think he did. He filed two briefs in the case, one entitled “Brief of Oliver W. Steadman, Appellant on Appeal from District Court of Park County, Wyoming”, and the other entitled “Brief of Respondent and Co-Guardian, Oliver *202W. Steadman on Appeal from the District Court of Park County, Wyoming”. The latter brief is all-comprehensive. It fully discusses the question of liability for the §1,900 item. We mentioned that in the original opinion herein. He further cited 39 C.J.S. Guardian and Ward § 194, p. 341, which was also cited in the original opinion, stating that one guardian is ordinarily not liable for the defaults of another guardian, and Steadman claimed his exemption from liability for the §5,000 item under that rule. He stated further in that brief:

“* * * but this Respondent does urge upon the Court that since Mr. Wayman received all the funds before any determination of incompetency and before his appointment as guardian — the §1,900.00 absolutely and §5,000.00 in joint tenancy — and that it is freely and frankly shown by Mr. Wayman’s testimony that he personally received these funds, that Respondent Stead-man cannot be held responsible for such funds. If there were any acts of default, they were of Mr. Way-man alone.”

We cannot see how the argument of Mr. Steadman could have been more specific as to both the item of §1,900 and that of $5,347.59 (§5,000 plus interest). It is true that the brief covering these matters is entitled in Case No. 2794, and the brief in Case No. 2795 relates to the jurisdiction of the trial court, but Cases Nos. 2794 and 2795 relate to the same matter — liability of the guardians — and it would be too technical to hold that Mr. Steadman failed to argue the fact that he was not liable for the above item of $5,347.59 when, as a matter of fact, he did so, even though it might perhaps be said that it would have been better or more accurate if he had done so in both of the briefs filed by him in this court. We might add that Steadman argued his non-liability for either of the items above mentioned in his oral argument in this court; and the *203impression left with us at the end of the argument was that the main questions herein were those relating to Steadman’s liability as to either of those items above mentioned.

The petition for rehearing is denied.