Wright v. Clough

CHILTON, J. Tt is insisted that the order of publication is defective; 1st, because it does .not require the guardian-to file his accounts and 'vouchers; 2d, in his not being required to appear at a regular term of the Orphans’ Court. It is further insisted that the publication does not appear to have been properly made, and that conceding it to have been so made, that then the court transcended its authority in pronouncing final decree on the day designated in the publication. The order of publication is as follows: “It appearing to the satisfaction of the court, that Jesse G. Wright, guardian of the person and estate of said minor, (Geo. W. Clough,) has removed beyond the jurisdiction of this court without settling his accounts with this court as such guardian : It is therefore ordered by the court, that the said Jesse G. Wright be cited 'by publication of this order in the Dallas Gazette, a newspaper printed and published in Dallas county, Alabama, for three months, to appear before this court on the second Monday in August next, to show cause why an account should not be stated against him and his accounts finally settled by the judge of said court under the statute in such case made and provided.” Upon the day designated in the foregoing order the court proceed to make a final decree, in which it is recited that “ at a regular term of the Orphans’ Court on that day held, the minor appeared by his next friend and having shown to the satisfaction of the court by competent and sufficient testimony that the publication required by law had been regularly and duly given, and that all' the proceedings therein have been regular, and the said Jesse G. Wright, guardian aforesaid, not appearing, and it also appearing to the court that said guardian was properly chargeable rvith funds belonging to said minor in the sum of nine hundred and forty-five dollars and forty cents,” &c. The court then proceeded to render a decree for that sum and to award execution for the same. The statute under which these proceedings were had requires [494] the judge of the Orphans' Court to cause notice to be given by advertisement, &c., requiring the guardian to file his accounts and vouchers for settlement at a regular term of said court to be holden not less than three months from the date of said notice, and if he fail to appear and file his accounts &c. for settlement, it is made the duty of said judge to state an account against him charging him with such amounts as shall appear to. have come to his hands as guardian, “and proceed to settle and decree upon the same as now required hj law.” Then follows-a proviso that if the guardian shall appear and file his accounts and vouchers-for settlement, and pay such costs as may have accrued in consequence of his defalcation, before the final hearing of. ike account stated as aforesaid and decree thereon, it shall-be the duty of said court to set aside the proceedings aforesaid and to audit and state the account filed by said guardian in manner and form now required by law.” We think it sufficiently appears of record in this case that the term of the Orphans’ Court at whieh the guardian was cited by the publication to appear, was a regular term of the court. Indeed the record expressly states that it was, and we are of opinion that the publication and the recital of the proof thereof is sufficiently shown, and amounts to a substantial compliance with the statute. The record recites that satisfactory and sufficient proof of publication was made, and as the order required to be published appears, we think the same rule which obtains in chancery cases in respect to decrees pro confesso against nonresident defendants equally applies to cases like the present, and by that rule this is deemed quite sufficient. — Butler v. Butler, 11 Ala. 668; Hartley v. Bloodgood, 16 ib. 233. The act of 1843 which we have above cited, while it authorises the court upon the default of the guardian to appear and file his accounts and vouchers at the regular term to which he is cited, to proceed ex parte and slate the account, evidently contemplates that no final decree shall be rendered at that term. Had such been the intention of the framers of the law, instead of saying that the judge should state the account at that term, charging the guardian, &c. “ and proceed to settle and decree upon the same as now required by law,” they would have made-no reference to the then existing law, but have authorised the-rendition of a decree final upon the account so stated at the [495] term. The law to which reference was evidently made in this enactment was the act of 1306, which so far as its provisions are not repealed by the subsequent statutes, must be regarded of force. By that the judge is to cause accounts after they are stated to be reported for allowance at the next term. — Clay’s Dig. 226, § 27. The notice required to be given by the guardian, &c. by the act last cited, would not apply to a case situated like the present, as this was intended for the benefit of the ward, distributees, &c. and not for the protection of the guardian, as has been several times decided by this court. The guardian cannot therefore take advantage of the want of such notice being given, but the party only for whose benefit it was intended. — Davis v. Davis et al. 6 Ala. 611; Williamson v. Hill, 6 Port. R. 184; Treadwell, guard. v. Burden, adm’r, &c. 8 Ala. 660; Willis, adm’r, v. Willis’ Distributees, 16 ib. 652. But although the guardian can take no advantage of the want of notice when the account will be heard and decreed upon finally, and being in default after the publication for him to produce his accounts and vouchers for final settlement as required by the act of 1843, is entitled to no further notice, yet he is entitled to have until the next term after that, to which he is cited in the publication, to come in (as is plainly indicated by the proviso to the act) before the final decree on the account stated at the previous term — to set aside the previous proceedings on the terms therein prescribed, and to have his accounts and vouchers filed and acted on by the court. Of this time to appear and place himself rightly before the court he has been deprived and may have suffered injury in consequence thereof. So that while the guardian cannot be heard to complain on error that he was not notified as required by the act of 1806, to come in and show cause why the account stated should not be allowed, he has a right to complain that the court deprived him of the time which elapsed between two terms of the Orphans’ Court within which he could have filed his accounts and vouchers. For this error the decree must be reversed and the cause remanded.