delivered the opinion of the court.
On the 3d day of March, 1852, Martin was appointed guardian for William E. McCleland, an infant of tender years, by the probate court of Clermont county, Ohio, and on the 22d day of February, 1854, he filed his petition in the Kenton circuit court against McDonald, who had been appointed guardian for the same infant by the .Kenton county court, for the recovery of money in the hands of the latter guardian, derived from the rents of a house and lot in Covington, and from the administrator of the infants’ father.
The defendant answered, setting up various defenses in different paragraphs, the validity of which need not now be inquired into. The plaintiff demurred to the answer, and the record states that the demurrer was heard, and that the demurrer to the peti*548tion was sustained. No. demurrer is filed in the record, and we presume that the defendant did not file a demurrer to the petition after answer, but that, on hearing the demurrer to the answer, the petition was adjudged bad — the demurrer to the answer necessarily involving the validity of the petition according to the rules of pleading. The Code has made no alteration in this respect. The only question, therefore, which it devolves upon us to decide, or which is properly before us for decision, is, whether the petition is good or bad? The validity or invalidity of the answer, according to the record, has not been determined by the circuit court; the demurrer to it made it the duty of the court first to look into the petition, and decide upon its validity, the plaintiff having no right to question the answer, if his petition were bad. Had the court thought the petition good, it would have decided the answer to be good or bad, and if bad, the defendant might have made it good by amendment; but the court being of opinion that the petition was bad, relieved it from a decision upon the answer.
2. By the Revised Statutes, sec. 17, art. 2, page 376, the guardian of a non residen t minor may apply to the circuit or county court in this state to compel a guardian of the same minor in this state to pay over to a foreign guardian the personal estate of his ward. But the court must be satisfied that the foreign guardian has ' given sufficient bond and security to secure thefunds. These things being averred prima facie, the plaintiff has a right to recover.*548, By the 17th section of article 2d, Revised Statutes, 376, the guardian of a non-resident minor is authorized to apply, by petition, to a county or circuit court in this state, to compel a guardian of the same minor in this state to pay over to the foreign guardian the personal estate of his ward. But the court, before it grants such petition, must be satisfied by documentary evidence that the foreign guardian has, where he qualified, given bond with surety to account for all the estate of the minor that might come to his hands. .
The petition avers the appointment of the plaintiff as guardian to said minor by the probate court of Clermont county, Ohio; his acceptance of the appointment; his giving bond with surety, &c., in the penalty of $1,100, to account faithfully and justly for all the money of his ward that might come to his hands, and that, at the time of his appointment, his ward was a resident of said county of Clermont, Ohio. He also avers the appointment of the defendant as ■ guardian *549for the same minor by the county court of Kenton, and that the defendant has in his hands, at least the sum. of $200 belonging to the ward. And he files with the petition an authenticated copy of the record of his appointment, &c., in the state of Ohio.
The state of case required by the above recited section of the Revised Statutes seems to be fully presented by the petition, and a right, prima facie, made out for a recovery against the defendant, and it was erroneous to adjudge the petition bad.
No questions of fraud in the appointment of the foreign guardian; the sufficiency of the bond, &c.; the actual residence of the ward, &c., in Ohio, at the time of appointment, are proper subjects of inquiry upon demurrer. It is sufficient that the petition presents, prima facie, a right to the funds in hands of the defendant, and these questions of fraud, &e., are proper subjects of inquiry upon an issue formed by a valid and appropriate answer.
Wherefore, the judgment is reversed, and the cause remanded, that the demurrer as to the petition be overruled, and for further proceedings.