Wilbanks v. Mitchell

184 So. 894, 237 Ala. 3, 1938 Ala. LEXIS 443

• Court: Supreme Court of Alabama
• Decided: December 8, 1938
• Docket: 6 Div. 381.
• Status: Published

Opinion

THOMAS, Justice.

The suit sought to enforce in’ equity the liability of the judge of probate on his official bond for not requiring a sufficient bond in the matter of a guardianship.

The liability of such official, and his sureties, is independent of that of the guardian dealing with and in the settlement of the estate of the ward.

The action of the trial court was without error, in sustaining demurrer on grounds that complainant had a plain and adequate remedy at law, where the judge of probate and his sureties were • entitled to a jury. Jarrett v. Hagedorn et al., post, p. 66, 185 So. 401.

This case is not within the rule of Lindsey v. Standard Acc. Ins. Co., 230 Ala. 633, 162 So. 267, or Altman v. Barrett, 234 Ala. 234, 174 So. 293, 295. The bill did not state facts that brought it within the equitable cognizance for an accounting or discovery or other equitable' relief.

If there is liability on the part of the judge of probate and his sureties, it grows out o-f the failure of tha-t official in the discharge of his general duty when the guardianship was pending and settled.

The decree of the circuit court is affirmed.

Affirmed.

ANDERSON, C. J., and BROWN and KNIGHT, JJ., concur.