Painter v. Mauldin

COLEMAN, J. Upon final settlement of his ac [92] counts by W. C. Matthews as guardian, execution issued against him and certain parties as sureties on his bond. The appellant moved the court to quash the execution, and the present appeal is prosecuted from the orders and judgment of the court upon the motion to quash the execution. There are several assignments of error, but only two material questions are raised. It is an admitted fact, that the guardian himself, the principal, though his name appears in the body of the bond, never signed the bond; and the facts stated in the motion, which are admitted to be true, show that movant has been guilty of no laches or other acts, which can operate as a waiver of his right to insist upon the defect, if indeed it be such. The question is, whether the sureties are bound, and the court’s right to issue execution on the bond. This question has been decided by different courts of great learning, both ways. Some of the authorities may be found cited to the case of Gay v. Murphy, 134 Mo. 98 (56 Am. St. Rep. 496), and City of Deering v. Moore, 86 Me. 181 (41 Am. St. Rep. 534). It is the opinion of the court that if the bond was not executed by the guardian as principal, as seems to have been admitted, it is not a statutory bond, and did not authorize the issuance of execution against the sureties as provided by the statute. We hold, however, that under the admitted facts, by virtue of section 2282 of the Code of 1896, the bond is good as a common law liability upon which the obligors may be sued in a court of law. Under the view taken of the character of the bond, it is unnecessary to consider the other questions presented by the record. Reversed and remanded.