Bartels v. Gove

The opinion of the court was delivered by Dunbar, J. — This is an action by Peter Bartels, the administrator of the estate of Henry Bowman, deceased, against Scott, the former administrator, and Gove and Kitely, the sureties on his bond, to recover $3,315.65, an amount alleged to be due from Scott to Bartels; this amount representing money, property and effects claimed to be charged to Scott in his final account, which it is claimed he should have paid over to Bartels, the new administrator. Gove and Kitely demurred to the complaint on the grounds — (1) That it did not state facts sufficient to constitute a cause of action; (2) that the cause of action stated in the complaint was barred by the statute of limitations. The demurrer was overruled, and the defendants^ standing on the demurrer, and refusing to plead further [633] judgment was in due course of time entered in favor of the plaintiffs, from which judgment defendants appealed to this court, alleging as error the action of the court in overruling their demurrer. The first ground of the objection to the complaint is, that it is insufficient because it is not shown that the plaintiff was ever granted permission by the court to bring this action as provided by § 654 of the Code of 1881, which provides that before any action shall be commenced by a plaintiff, other than the state or municipality, against any public officer for official misconduct, etc., leave shall first be obtained from the court or judge where the action is triable. "We are all of the opinion that this section does not apply to suits against administrators; that an administrator is not a public officer within the meaning of that chapter. We think there is nothing inconsistent in the provisions of chapter 61, the subject of which is “suits on official bonds, fines and forfeitures,” and the act providing for the commencement of actions against administrators, which is an act “in relation to administrators, their duties and responsibilities.” There are some cases, it is true, which hold that application must first be made to the court, and leave obtained, to sue on an administrator’s bond; but the cases we have examined are based upon statutes especially providing for the application in such cases, and the probabilities are that, in all cases so holding, the statute especially requires the application in suits on administrator’s bonds. With this view of the responsibilities of the administrator, it becomes unnecessary to discuss the correlative proposition submitted by the appellant that whatever releases or extinguishes the liability of the principal also extinguishes the liability of his sureties. We are also of the opinion that the second ground of demurrer is not well taken, and that this action is not barred [634] by tbe statute of limitations. We think that subd. 2 of § 30 of the Code of 1881 has reference to the time of the final settlement of the estate, and not the settlement of the accounts of every intermediate administrator that there might happen to be in the progress of the settlement of the estate. This view of the case renders it unnecessary to enter upon the investigation of the merits of the motion to dismiss the appeal. The judgment is affirmed. Anders, C. J., and Scott, Hoyt and Stiles, JJ., concur.