Opinion
Department Two
Hearing In Bank Denied.
Appeal from a judgment of the Superior Court of Sacramento County and from an order refusing a new trial. Matt F. Johnson, Judge.
COUNSEL:
Armstrong, Bruner & Platnauer, for Appellants.
Holl & Dunn, for Respondent.
JUDGES: Searls, C. Belcher, C., and Britt, C., concurred. McFarland, J., Temple, J., Henshaw, J.
OPINION
SEARLS, Judge
This is an action upon an undertaking executed by the defendant A. T. Cotton, as principal, and by defendants E. Lathrop and J. Goldman, as sureties, conditioned for the faithful performance by said Cotton of his duties as guardian of the person and estate of Eva C. Trumpler, the plaintiff herein, in the penal sum of twelve hundred and fifty dollars. The cause was tried by the court without a jury, and judgment rendered in favor of plaintiff for twelve hundred and fifty dollars, and legal interest thereon from October 3, 1892, and costs.
Defendants Lathrop and Goldman appeal from the judgment and from an order denying their motion for a new trial. Defendants demurred to the complaint, which demurrer was overruled by the court, and the ruling is assigned as error. The essence of defendant's objection is not fully disclosed by the allegations of the complaint.
The same question arose, however, repeatedly in the course of the trial, and is embodied in the bill of exceptions or statement on motion for a new trial, and a proper disposition of the case requires it to be met and determined.
The following facts constitute the principal factors in the problem: A. T. [41 P. 1034] Cotton was duly appointed the guardian of the person and estate of Eva C. Trumpler, an infant, by the probate court of Yolo county on the fourth day of October, 1886, and duly qualified and filed an undertaking, with the other defendants as sureties, for the faithful discharge of his duties as such guardian.
Cotton caused to be made and filed on the eleventh day of February, 1888, an inventory and appraisement of the estate of his ward which had come to his possession, and showing its value to be three thousand five hundred and thirteen dollars and twenty-one cents.
On the eleventh day of July, 1891, the plaintiff reached her majority. Prior thereto, and on the twenty-fourth day of March, 1890, said Cotton filed an account as guardian, showing that there was in his hands as such guardian of plaintiff the sum of four thousand five hundred and thirty-nine dollars and thirty-five cents in cash, as well as certain property, real and personal, which account was duly settled and allowed by said probate court. In January, 1891, the said A. T. Cotton, guardian, absconded from the state of California, and ever since has remained without and absent from the state, and has never filed any other or final account. Under these circumstances, on the thirtieth day of March, 1892, Harry F. G. Trumpler, a brother of plaintiff, made and filed a petition, duly verified, in the superior court of the county of Yolo, setting forth the facts, and showing that the said guardian had failed to file his final account, and praying a citation to said guardian requiring him to appear and render his account, etc.
Thereupon a citation in due form was ordered by the said court requiring said guardian to appear and file his account on June 27, 1892; and, upon an affidavit showing that said guardian was a nonresident of the state of California, and a resident of Victoria, British Columbia, Dominion of Canada, etc., an order was made in due form for publication of said order requiring said guardian to appear and file his account. The order was duly published, and a copy duly deposited in the mail, directed to said guardian at Victoria, etc.
Cotton, the guardian, failed to appear, and, upon proof of service of the order as aforesaid, the superior court, by order, appointed one E. B. Mering, Esq., a referee to prepare, render, and present for allowance the final account of said guardian.
The account was made and presented by the referee, due notice of the settlement thereof given, and on the first day of September, 1892, defendants Lathrop and Goldman appeared by counsel, filed a demurrer to the jurisdiction of the court, and an answer, objections, and exceptions to the ruling of the court, and to its jurisdiction.
The court overruled the objections, settled the account, and by its decree adjudged that there was in the hands of said guardian of the funds of his ward, the plaintiff herein, the sum of four thousand seven hundred and five dollars and fifty-one cents, which was decreed to be paid to plaintiff.
The points made by appellant may be stated in condensed form thus: 1. In probate matters and in proceedings relating to guardians the superior courts can only exercise such special jurisdiction as is conferred upon them by statute, and their powers and the mode of their exercise can only be exercised in the cases and in the mode provided by statute; 2. The superior court has no jurisdiction to settle and allow an account of a guardian, except when presented by him, and there is no authority for any other person to return, file, or swear to an account for him; 3. The rendering and filing of an account by a guardian is jurisdictional, and without it the court has no power in the premises, except to attach the guardian, and remove him from office; 4. In a case where the guardian has absconded, and is without the jurisdiction of the court, and has failed to render his account, the case is like that where the guardian is deceased, and the sole jurisdiction is in equity; 5. The liability of the surety is dependent upon the liability of the principal, and does not attach until that of the latter is determined by a court of competent jurisdiction; 6. Harry F. G. Trumpler had no interest in the estate of plaintiff. He was a stranger to the proceeding, and his petition could confer no jurisdiction on the court to take action in the matter.
The contentions of appellants, as embodied in the foregoing propositions, will be considered without reference to the consecutive order of their statement. Title XI of the Code of Civil Procedure, commencing at section 1294, relates to proceedings in the probate court, and relates to the proof of wills, appointment of executors and administrators, the various proceedings for the settlement of the estates of deceased persons, and cognate matters connected with or relating thereto, and also contains a chapter in reference to guardians and wards; the manner of the appointment of such guardians, their duties, etc.
Section 1773 provides that every guardian must return to the court an inventory of the estate of his ward within three months after his appointment, and annually thereafter, and further provides that "the court may, upon application made for that purpose by any person, compel the guardian to render an account to the court of the estate of his ward." By section 1774 the guardian is required, upon the expiration of a year from the time of his appointment, and as often thereafter as he may be required, to present his account to the court for settlement and allowance It will be observed from the language of section 1773, supra, that the court is authorized to compel the guardian to render an account upon the application of any person. It is not necessary that the person making such application shall have an interest in the estate. The application on the part of Harry F. G. Trumpler, the brother of plaintiff, was therefore sufficient, and the order or citation to the guardian to present his account for settlement and allow ance was properly made upon such application. [41 P. 1035]
Was the service of the citation sufficient to give the court jurisdiction?
Under section 1808: "The provisions of this title (tit. XI) relative to the estates of decedents, so far as they relate to the practice in the superior court, apply to proceedings under this chapter." That is to say, to proceedings in regard to guardians.
It is further provided by section 1789 that accounts and the settlement of accounts of guardians must be had and made as required by the provisions concerning estates of decedents, unless otherwise specially provided.
Turning to section 1709 of the Code of Civil Procedure, and we find that citations must be served in the same manner as a summons in a civil action. In a civil action, when a person to be served with a summons resides without the state, service may be made by publication. (Code Civ. Proc., sec. 412.)
The affidavit for publication was such as is required in cases of publication of summons in a civil action, and must be held sufficient. The court having thus by substitute service obtained jurisdiction of the person of the guardian, and possessing, under the statute, jurisdiction of the subject matter of the settlement of his account, and the guardian being without the jurisdiction of the court, and not amenable to process of attachment, and, having failed to file his account, it was within the province of the court to (as was said in Graff v. Mesmer , 52 Cal. 637) cause "the account to be made up, audited, and settled, upon such evidence as should be adduced on behalf of the ward."
Where jurisdiction is conferred upon a court by the constitution or a statute, all the means to carry it into effect are also given, and, if the course of proceedings is not specifically designated by the code, any suitable mode may be adopted which may appear most conformable to the code. (Code Civ. Proc., sec. 187.)
Spencer v. Houghton , 68 Cal. 82, is to the point that a guardian is bound to settle his accounts whenever directed by the probate court, and that the guardian who receives his appointment under the law which prescribes that notice may be served by publication is to be regarded as assenting in advance that upon leaving the state service may be made upon him by publication. (See, also, Ashurst v. Fountain , 67 Cal. 18; Estate of Aveline , 53 Cal. 260; Graff v. Mesmer, supra .) As the court could take and state the account, so it could refer it to some proper person to state it. (Code Civ. Proc., sec. 639; Hidden v. Jordan , 28 Cal. 309.)
Counsel for appellant liken a case like the present to that of Chaquette v. Ortet , 60 Cal. 594, where the administrator of an estate died before rendering his account, and this court held that jurisdiction to compel an accounting vested in a court of equity, and that an adjustment of the account by that court was a prerequisite to an action against the sureties on the administrator's bond.
The decision proceeds upon the theory that "there is no provision of the statute providing for the settlement of the account of an administrator who dies before rendering an account." In re Allgier , 65 Cal. 228, was a similar case and was decided upon like grounds.
The reason of the rule does not prevail in a case like the present. Here the court not only has jurisdiction of the subject matter, but the statute designates specifically the means by which it shall obtain jurisdiction of the person of the guardian, and such guardian cannot thwart the object of the law by failing or refusing to present his account.
It was said in Graff v. Mesmer, from which we have quoted supra: "It is the peculiar province of the probate court to settle the accounts of guardians; and, as we have seen, it has authority to do so even after the letters are revoked. The statute contemplates that its power in this respect shall be exclusive in those cases in which the necessary authority has been conferred, as in this case. If the rule were otherwise a suit against the sureties on the official bond would often involve the settlement of a complicated account before a jury instead of a probate court, which possesses peculiar facilities for scrutinizing the accounts and holding the guardian to a proper accountability."
That was an action against the sureties on the bond of a guardian, without a previous settlement of his account by the probate court, and the court held that the action could not be maintained until such settlement had been had, and, as hereinbefore quoted, that if the guardian could not from any cause be compelled to present his account, the court could order it made up from the evidence at hand.
We conclude that the account as settled by the court was adjusted within the lines of the law, and is binding upon the sureties of the guardian, the appellants here, and hence that the various objections going to the validity of the account as settled were properly overruled by the court below and the several errors assigned upon such rulings cannot be upheld.
The court gave judgment against the defendants as sureties for the sum of twelve hundred and fifty dollars, the amount of their undertaking, with legal interest thereon from October 3, 1892, the date of the decree settling the account and adjudging its payment. The general rule is that judgment cannot be rendered against sureties for a greater amount than the penalty of the bond, and they "cannot be held liable for interest beyond the penalty of the bond, except for such interest as accrued from their own default in unjustly withholding payment after having been notified of the default of their principal." (Murfree on Official Bonds, sec. 689, and cases cited.)
In the absence of a notification interest is only allowed from the issuance of the writ. The complaint avers a demand of payment from the sureties "after October 3, 1892, and previous to the filing of this complaint." The complaint was filed October 22, 1892. Under such an allegation in the complaint [41 P. 1036] we are not at liberty to assume that the demand was made until the last moment before filing the complaint.
It follows that the interest for some nineteen days was improperly allowed. The amount is less than five dollars, a trifle scarcely worthy of an appeal. The point being made, however, we must hold that there was error in allowing interest prior to October 22, 1892.
The order denying a new trial should be affirmed, and the cause remanded to the court below with directions to modify the judgment by striking therefrom the allowance of interest from October 3, 1892, to October 22, 1892, as and so modified the judgment should be affirmed. Each party to pay his own costs on this appeal.
For the reasons given in the foregoing opinion the order denying the motion for a new trial is affirmed, and the cause remanded to the court below with instructions to modify the judgment by striking therefrom the allowance of interest from October 3, 1892, to October 22, 1892, and as so modified the judgment is affirmed. Each party to pay his own costs on this appeal.