Fincher v. Monteith

73 Tenn. 144

• Court: Tennessee Supreme Court
• Decided: September 15, 1880
• Status: Published

Opinion

Freeman, J.,

delivered the opinion of the court.

This is a petition filed in the county court of Greene county, to remove defendant, Monteith, from his guardianship of Fincher, who had been declared of unsound mind by the county court in 1872, when said Monteith was appointed his guardian.

The grounds of the application are, that the guardian had mismanaged and wasted the estate of his ward, converting the same to his own use by paying his own debts; also had refused to pay bona fide debts for necessaries, and was engaged in fruitless and useless litigation; in addition had failed to make settlements with the county court as required by law, or renew his bond.

The county court refused to remove the guardian, but upon appeal to the circuit court, this judgment was reversed, and the case remanded to the county court, with directions to remove Monteith, and appoint another guardian in his stead; from which judgment there is an appeal to this court.

A motion seems to have been made by defendant in the circuit court, to try the case as an error on the record alone, which was refused by the court. This was in the nature of a chancery proceeding, and is to be reheard by section 3152 of the Code, as if the proceeding had been commenced in the circuit court.

The court properly adjudged the removal of the guardian. The Code expressly provides that every guardian, at the time of making his biennial list or statement of his ward’s estate, shall renew his bond. Sec. 2499. And the next section provides, if he fails the court shall remove him. The defendant is shown by his own statement to have used his ward’s money in payment of his own debts, in violation of his duty, and for this cause should have been removed from his position.

The judgment of the court is affirmed with costs.

The ward has died since the case came to this court.