Pummill v. Baumgartnr

3 Ohio N.P. 40

• Court: Court of Common Pleas of Ohio, Hamilton County
• Decided: December 15, 1895
• Status: Published

Opinion

BUCHWALTER, J.

This cause is submitted upon an agreed statement of facts,including the appearance docket and original entries of the probate court proceedings in the previous guardianship of said Rasche’s estate The action is for $5,845.48, with interest from August 18, 1893, upon the original guardian bond, given December 16, 1879, by Cassimier Bauman as principal, and Jacob Baumgartner, Beatus Schrader, Frank Hoeffer and Philip Dolle as sureties, for $36,000. On August 20, 1885, said Bauman moved the court for leave to give a neto bond, which was given, and approved Dy the court, with Frank Kirchner, Henry Varwig, Henry Ortman and Philip Dolle, as sureties.

March 9, 1889, the court, on the election of the ward (then 15 years old), vacated the appointment of Bauman, and appointed her nominee, Adelaide Rasche, as guardian, and approved her bond in the sum of $14,400, with two sureties.

July 5, 1889, the court finding said Adelaide Raschje’s bond toibe insufficient, vacated the order appointing her guardian and the order vacating said Bauman’s guardianship.

July 5, 1889, Frank Kirchner moves the court to be relieved from liability as surety, and after notice thereof being served it is ordered that said Bauman give a neto bond, and when it is approved said Kirchner shall be relieved of further liability.

July 8, 1889, Bauman gave a new bond, approved by the court, in, the sum of $14,400, with Henry Varwig and Henry Ortman as sureties. The-entry recites Bauman’s appointment as of December 16,1879, and does not in terms release the other sureties.

October 31, 1891, Bauman is removed, and the plaintiff herein appointed guardian. The defalcation of Bauman appears on or after the above date in his inability to pay over the balance due as ordered by the court.

However, it is agreed that on April 15, 1889, (while the giving of additional sureties by Adelaide Rasche as guardian was pending in the probate court), said Casimir Bauman placed in the hands of Mr. Louis J. Dolle, attorney, a check duly certified, for the amount due the estate of said ward, upon a solvent bank of ' Cincinnati, Ohio, to be given to said succeeding guardian, when she should give ,a bond satisfactory to the court. * * *

There is here-no evidence of defalcation prior to the date of the giv- ' ing of his last bond. The inference from the facts as to the giving of the certified check all favor the solvency of -Bauman and that he had the-money of his ward’s estate in hand, to be applied in the execution of his trust, instead of any loss or conversion of the same.

L. H. Pummill, attorney for plaintiff. A. B. Benedict, Louis J. Dolle, and J. D. Braiman, attorneys for defendants.

Section 6261, Revised Statutes provides for the giving of additional security, additional bonds, and section 6273, Revised Statutes, for the release of former bondsmen, and the giving of new bonds.

There is nothing in the facts, nor in the journal entries specifying why the bond of August 20, 1885, was given, other than it was ordered on the motion of the guardian himself; nor as to the character of the bond •exceiit that it is called a new bond, and except as to Philip Dolle, the sureties are all new or different ones.

The former bondsmen had the statutory right to have a citation issue to the guardian requiring him to give a new bond, but if he voluntarily appear, then there is no need of such citation — the court had jurisdiction without it. It being called a new bond, the presumption is that it was ordered given uuder Section 6273; that his bondsmen ora part of them asked to be relieved, and that on such informal request and notice, the guardian voluntarily appeared and gave such new bond. The statute specifically directs the release of such requesting bondsmen. Who did request it? As all of them, save Philip Dolle, are omitted from the new bond, a reasonable presumption, is. that all the others requested such release.

The presumption is that it was a new bond, substituting new sureties, and not an additional bond.

All requesting former bondsmen at least were entitled to an order of -discharge as to future liability upon the approval of such new bond. The statute gave such right to be released. It was not made dependent upon the discretion of the court, nor even upon its order. The law itself released them upon the approval of a neto bond. Lane v. State, 23 Ind., 108; Spencer v. Houghton, 68 Cal., 86; McWilliams v. Norfleet, 60 Miss., 987; Sayers v. Cassell, et al, 64 Va. 525; Murfree on Official Bonds, Sec. 361; U. S. v. Wardell 5 Mason 82.

Again the entries of July 5 and 8 1889 release specifically Frank Kirchner on the second from further liability upon the approval of the third bond which was specified to be a new bond. If the second bond was not a new bond, but only an additional one, then the surety of both bonds became bound to indemnify any defalcation, and the release of one of them (Kirchner) would release all of them. Dowell v. Gaion, 7 Rec. 273; 3 Bull. 735.

There can be no question but that Kirchner was released by the order •of the court from further liability. That being so, it worked the release .of all his co-sureties. Murfree on Official Bonds, Sec. 721; People v. Buster, 11 Cal., 215; Spencer v. Houghton, 68 Cal., 86.

The defalcation (being discovered on the final settlement), is presumed to have occurred during the term of the last bond, in the absence of any proof that the same did occur prior thereto. Kelley v. State, 25 O. S., 567; United States v. Earhart, 4 Sayer, U. S. C. C., 245; Alvard v. United States, 13 Blatchford, U. S. C. C., 279. These conclusions make it unnecessary to consider the effect of the vacating order as to the guardianship uf Adelaide Rasche.

The sureties on the first bond of Bauman, guardian, are therefore not liable. Judgment for defendants.