United States Fidelity & Guaranty Co. v. Sinclair

GARDNER, J. The bill in this cause was filed for the purpose of fixing the liability of respondent United States Fidelity & Guaranty Company as surety on the bond executed by J. L. Sinclair, deceased, guardian for the complainants. It appears that the guardian died on May 14, 1913, more than six years before the filing of the amended bill, and that W. L. Sinclair, one of the complainants, reached his majority in January, 1915, and had been of lawful age during three years after the death of the guardian and before the filing of the amended bill. [1] It is insisted that as to W. L. Sinclair the right of action was barred by laches —a court of equity applying by analogy the statute of limitations of six years in fixing a bar. Presley v. Weakley, 135 Ala. 517, 33 South. 434, 93 Am. St. Rep. 39. And the argument is advanced that as complainant W. L. Sinclair was not entitled to recover, none of the complainants could recover, upon the principle that all joint complainants must be entitled to recover or none can. This latter argument, however, overlooks the fact that the liability of the surety was several as well as joint (Fulgham v. Herstein, 77 Ala. 496; Frierson v. Travis, 39 Ala. 150; section 2503. Code 1907), and also that section 3212 of the Code expressly authorizes the chancery court to grant relief in favor of one or more complainants as they may be entitled under the facts as the equity and justice of the case may require; but, aside from this, it is not contended that the action was barred by laches, or that the period of six years from the death of the guardian had expired at the time of the filing of the original bill, but only from the filing of the amended bill; and the argument is made that the amendment created such a departure as to constitute in a sense a new cause of action, and therefore did not relate back to the filing of the new bill so as to save the cause from the provisions of the statute or the application of the doctrine of laches. [2, 3] This insistence is based upon-thé assertion that the original bill did not make the administrator of the deceased guardian a party, and that as such administrator was a necessary party a cause of action was not in fact stated until the amendment was filed, wherein such administrator was brought in as a respondent in the cause. There was no change in the cause of action; the matter' in controversy in the original bill was the question of liability of the United States Fidelity & Guaranty Company as surety on the guardian’s bond, and the extent of such liability. This was what was sought both by file original and the amended bill, in favor of the same beneficiaries. The guardian’s estate is alleged to have been insolvent, and the administrator of his estate, under the decisions of Fulgham v. Herstein, supra, and Frierson v. Travis, supra, was not a necessary, although a proper, party. We are unable therefore to agree with counsel for appellant upon this insistence, and entertain the view that there was no misjoinder of parties nor was the cause barred by laches as to any of the complainants. The case of United States Fidelity & Guaranty Co. v. Pittman, 183 Ala. 602, 62 South. 784, cited by counsel for appellant, was n.ot intended as in any manner conflicting with the foregoing authorities. The administrator was there a party to the cause, and it did not appear therein that the estate of the deceased guardian was insolvent. [4] It is further insisted that the bill was demurrable for its reference to the decree in the probate court against the administrator of the estate of the deceased guardian, upon the theory that such proceedings are not evidence or binding against the surety hete. That such were not binding is, of course^ correct. As said in United States Fidelity & Guaranty Co. v. Pittman, supra: “The surety was not, and is not, bound by any judgment or decree rendered against the personal representative of its principal. There was and is no remedy against the surety in a case of this character, involving the trust of a guardianship after the death of the principal, other than a bill in equity. There can be, after the death of the principal, no judicial ascertainment elsewhere of his liability which would conclude the surety.” [5] The bill merely refers to these matters, as facts without any effort to bind the sure-, ty thereby; but,-on the contrary, in a separate paragraph the bill expressly alleges the liability of the United States Fidelity & Guaranty Company as surety on the bond of’ J. L. Sinclair, as guardian, has never. been judicially determined or fixed. The decree of the probate court, as to the-administrator of the deceased guardian, may' be of more or less binding effect — a matter-which need not be here determined. But' it is not insisted in the bill that such decree *552 in any manner affected the rights of the. surety. Such being the case, the demurrer taking this point was properly overruled. The bill was not subject to the demurrer interposed and the decree overruling the same will be affirmed. Affirmed. ANDERSON, O. X, and SAYRE and THOMAS, JJ., concur.