Seelye v. People

Gary, J. There are upon this record several important questions, which will not be considered. The suit is debt upon the guardian’s bond, described in Brooks v. People, 15 Ill. App. 570, and 22 Ill. App. 594, conditioned as the Act of 1872, Sec. 7, Chap. 64 R. S., requires, among other things, to settle the accounts in the County Court, The ward arrived at the age of twenty-one years on the 25th day of August, 1874. This suit was commenced May 24, 1888. Under the Act of April 27, 1877, a Probate Court was established in Cook County. That act required the transfer from the County Court to the Probate Court of “all unfinished business relating to guardianship matters.” March 4, 1880, the Probate Court stated the final account of the guardian; found him' indebted to the ward in the sum of 855,541.10, and ordered the guardian to pay it to the ward within thirty days. That the guardian did not obey that order is assigned as the breach of the condition of the bond, and is the ground upon which the defendants in error, plaintiffs below, have recovered. The plaintiff in error, being a surety on the bond, contends that the order of the Probate Court is not within the condition of the bond, and therefore failure to obey it is not a breach. He pleaded non est factum to the bond; nul tiel record to the order of the Probate Court; limitation of ten years to the cause of action; and a special plea of dealings between the guardian and ward by which he was discharged. To the latter plea a demurrer was sustained. The defendants in error insist that upon these pleadings the question whether the failure to obey the order of the Probate Court was a breach of the condition can not be made. The whole matter appears on the face of the declaration, and if it shows no cause of action, that is “ always a question open to consideration, when it falls within any of the assignments of error.” O. & M. Ry. v. Wachter, 123 Ill. 440; Beadle, etc., v. Hyman, 33 Ill. App. 613. The sufficiency of the declaration was not a question on the demurrer to the last plea, as the rule in this State is, that a demurrer to one plea, good or bad, will not be carried back to the declaration if another good plea is on file. Mix v. People, 86 Ill. 329. But “if the declaration be so defective that it will not sustain a judgment, that may be taken advantage of on a motion in arrest of judgment, or on error.” Schofield v. Settley, 31 Ill. 515. A motion in arrest was made in the Circuit Court, one ground assigned being that “ the declaration does not support the verdict.” The plaintiff in error at the close of the evidence also ashed the court to instruct the jury to find for him on the ground that the order of the Probate Court was not binding upon him. The denial of that motion and the refusal of that instruction are both assigned as error. If the breach assigned was no breach, the instruction should have been given; and not being given, the motion in arrest should have been sustained; so that the question is now before the court whether a bond conditioned to settle accounts in the County Court binds the sureties of the guardian to the result of such settlement in the Probate Court, to which that class of business, by a statute subsequent to the execution of the bond, had been transferred. The argument on the affirmative side of that question is that “ at the time this bond was signed the Constitution of this State provided for the establishment of Probate Courts, to be given jurisdiction of the settlement of guardians’ accounts, and when Seeyle became Curtis’ surety he must be held to have contracted with reference to this provision of law, the effect of which might be to transfer the accounting to the Probate Court.” The argument goes too far. All legislative power, not prohibited by the Constitution of this State, or the exercise of which is not repugnant to the Constitution, laws or treaties of the United States, is vested in the General Assembly. People v. Marshall, 1 Gilm. 672. Sec. 20 of Article 6 of the Constitution does not enjoin, but permits, the creation of Probate Courts, and the' only effect of it is to enable the Legislature to do what it might have done without that section, but for the limitation of the judicial power to courts mentioned in Sec. 1 of the same article. The exercise of the power conferred by Sec. 20 therefore stands upon the same footing, as to this question, as the exercise of any other legislative power., It might with equal reason be argued that parties should be always held to contract with reference to later valid legislation. But this position, as applicable to sureties, has been always denied: Davis v. People, 1 Gilm. 409, and many cases since; and in one case, at least, where the statute was approved before, but took effect after the contract was made: Mix v. Vail, 86 Ill. 40. But the change by statute of the time of holding a court, under the judgment of which taxes are collected, is held not-to affect the remedy on the bond of the collector, for the taxes by him collected. People v. McHatton, 2 Gilm. 731. The Supreme Court does not define the distinction, but flouts the defense. That a surety is bound only by the letter of his undertaking is a familiar rule, applied in this State in a multitude of cases—from Reynolds v. Hall, 1 Scam. 35, to Vinyard v. Barnes, 124 Ill. 346, and perhaps later still. There is an exception as to statutory bonds, where the form is prescribed and followed, which will be construed to have the effect given by the statute. Hibbard v. McKindley, 28 Ill. 240. That exception does not help this case, for at the time this bond was given, the effect by statute as well as by form, was to settle accounts in the County Court. An appeal bond, which by statute should have been so conditioned as to bind the surety to pay whatever judgment should be rendered on the appeal, but which was conditioned only to pay a judgment of the Circuit Court of Hancock County, did not bind the surety to pay a judgment rendered by the Circuit Court of McDonough County on a change of venue. Sharp v. Bedell, 5 Gilm. 88. This case has been many times approved and followed in later ones. It must therefore be held that the condition to settle in the County Court, and pay what might be “due from him on such settlement,” does not bind the surety to a settlement in the Probate Court. Ho other cause of action than the failure to obey the order of the Probate Court is stated in the declaration. The argument that the action of the Probate Court “ may fairly be considered a settling of his account by the guardian with the ward,” and the failure to pay treated as a breach of another portion of the condition, can not apply to this declaration; no such breach is assigned; nor could it be; a settlement between parties is voluntary on both sides; the action of the court is not dependent on the will of the party. The order of the Probate Court recites that the court refused to approve the account presented by the guardian, which showed that the ward was indebted to the guardian several thousands of dollars, and restated it upon an investigation by the court. Such a settlement is within the language of the condition to settle accounts in the court, if the condition had covered the action of the Probate Court. Ammons v. The People, 11 Ill. 6. Ho multiplying of words can make it clearer that it is not a settlement with the ward. The judgment must be reversed, but as the action can in no, event be maintained, the cause is not remanded. If our views are correct, appeals by guardians from settlements of their accounts should be secured by bonds sufficient to secure the amounts involved, as the original bond does not cover the action of the court to which the appeal is taken. Of course we do not hold that the bond became void by the transfer from the County to the Probate Court. All the residue of the condition, except so much as relates to settling in the County Court, remained in force, and for any breach thereof doubtless an action would lie. Judgment reversed.