Buchanan v. Grimes

52 Miss. 82

• Court: Mississippi Supreme Court
• Decided: April 15, 1876
• Status: Published

Opinion

Campbell, J.,

delivered the opinion of the court.

Grimes was guardian of Mrs. Buchanan, and filed his final account as such in the chancery court, and Mrs. B., with her husband, was duly brought into court and urged some objec-' tion to the account as presented, and, at the April term, 1873, the guardian asked and obtained an order of court allowing him to “withdraw his final account” and “file an amended final account.” Without any step taken in the case until the January term, 1874, of the court, the final account first filed was materially altered and a final decree entered allowing it as amended and discharging the guardian. On the 22d of June, 1874, a petition was exhibited by the ward setting forth the above facts and praying the court which had rendered the final decree to set it aside and re-open the account, on the ground that, petitioner had no notice of the altered account and that its allowance operated as a surprise and fraud on her. The late guardian was summoned to answer the petition and pleaded the final decree in bar of the petition, and denied all fraud in obtaining it. The chancellor sustained the defense and dismissed the petition, and his decree is appealed from.

It is claimed by appellee that the case falls within Gray, adm’r, v. Harris, 43 Miss., 421, because all parties were in court and bound to notice every step in the progress of the case. We think the case much more like that of Person et al. v. Nevitt, 32 Miss., 180, which was a bill in the nature of a bill of review to set aside a decree of dismissal of a cause because of surprise to complainant. We think it clear that the alteration of the account at the third term, of the court (the chancery courts then held four terms a year), and its being allowed without any notice of it to the ward, operated a surprise to her and entitles her to have the decree of allowance vacated. Though this proceeding is called a petition, it is in fact in the nature of a bill of review, and is treated accordingly.

The decree dismissing the petition is reversed and ' cause remanded, with directions to the chancery court to set aside and vacate the decree allowing the account and discharging the guardian, and for further proceedings as though such account had not been allowed.