State ex rel. Benton v. Railsback

7 Ind. 634

Opinion

Stuart, J.

Suit on the bond of Wood, as the guardian of James Smith, an insane person. Wood was defaulted. The other defendant, Railsback, demurred. Demurrer overruled. By consent, the Court assessed the damages at 565 dollars and 81 cents, and judgment accordingly. Railsback appeals.

The only question raised by the demurrer, is, that the complaint is defective for not alleging proceedings and judgment against Wood as such guardian. It is insisted that suit can not be maintained on the bond against Rails-back, until such judgment has first been had against Wood. But no authorities are cited in favor of the position. And if any reliance is placed on Eaton v. Benefield, 2 Blackf. 52, the scope of that decision is wholly misconceived. There is no analogy between the two cases. Besides, all those cases must be regarded as overruled by the ruling in The State on the relation of Shannon v. Strange and Others, 1 Ind. R. 538.

J S. Newman and J. P. Siddall, for the state. J. B. Julian and W. P. Benton, for the appellees.

The complaint alleges that on the 15th of April, 1854, Wood, as guardian, settled with the Wayne Court of Common Pleas, showing a balance of 492 dollars and 23 cents in his possession, as such guardian, of moneys belonging to Smith, and a demand, &c. These, and all the material allegations of the complaint, are admitted by the demurrer. The judgment is an inevitable conclusion flowing from this admission.

Per Curiam.

The judgment is affirmed, with 2 per cent, damages and costs.