Griffith v. Western Surety Co.

SLOAN, J. The complaint in this case, filed in tbe circuit court for Lincoln county, attempted to allege a cause of suit against defendant Surety Company for alleged derelictions of an administratrix for whom defendant bad a bond responsibility. Tbe complaint attempted to bold defendant directly liable on its bond without any prior determination by tbe probate court that tbe administratrix had violated her duty and that tbe bondsman bad any obligation. Defendant demurred to tbe complaint on the ground that tbe court lacked jurisdiction; that this was a matter within tbe exclusive jurisdiction of tbe probate court. Tbe trial court sustained tbe demurrer. Plaintiff appeals. In Lincoln county, probate jurisdiction is exclusively in tbe district court. ORS 5.040 and 46.092. The obligation of the bondsman is fixed by ORS 115.430 (1) which conditioned the responsibility of the bondsman to pay on tbe unfaithful performance of her duties by tbe administratrix. There would have been no liability in this suit, of defendant to plaintiff, until tbe failure, if any, of the administratrix bad first been settled in tbe probate court. The circuit court, obviously, bad no jurisdiction to settle or determine tbe accounts of tbe administratrix, and no [200] authority to entertain a suit of this nature. This is ancient law in Oregon. Adams, Adm’r, Etc. v. Petrain et al, 11 Or 304, 3 P 163 (1884); National Surety Corp. v. McArthur, 174 Or 376, 149 P2d 328 (1944). Plaintiff’s attempt to convert this into an examination of title to property is not valid. Judgment affirmed.