Finn v. Whitten

Yeager, J. This is an action which, as it appears, originated in the county court of Johnson County, Nebraska, by the filing of an application of Mabel Ola Whitten, who will [283] hereinafter be referred to as appellant, guardian of Ronald James Edwards, to have approved a guardian’s account filed on April 1, 1959. This appears by recital only. The account, if any was filed, does not appear in the record before this court, and neither does anything authentically representing it. It appears that this was not a final but an interim or current account covering the period beginning November 1, 1957, and ending November 1, 1958. As it appears Robert S. Finn, who will be hereinafter referred to as appellee, denominated guardian ad litem of Ronald James Edwards, filed objections to the report. Apparently the account was submitted to the county court for consideration where the account was disapproved and judgment was rendered against the appellant and in favor of the appellee. Apparently from the judgment appellant took an appeal to the district court. The term “apparently” is employed since nothing authentically appears in the record before this court to indicate what was presented to the county court or what judgment was there entered. There is no transcript from that court presented here. In the district court the appellant filed a petition for the approval of a guardian’s account which she declared contained a copy of her report made to the county court on April 1, 1959. To this report the appellee filed objections in which he prayed for an order finding that the appellant was indebted to the estate of Ronald James Edwards in the amount of $2,125; that the appellant be directed to reimburse the estate in that amount; and that for failure so to do the surety on appellant’s bond should be required to make up the shortages with statutory interest from the time of the defalcations. Thereafter the appellee submitted to appellant requests for admissions which requests were responded to by the appellant. This was followed by a motion made by the appellee for a summary judgment. The appellant filed objections in which she declared that summary judgment was not proper. The pertinent [284] declared reason was in substance that there was an issue as to the extent, if any, of the shortage in her account as a whole as guardian which could not be ascertained except by a trial,, in consequence of which no proper summary judgment could be rendered. The case came on for hearing and a summary judgment was rendered in favor of appellee for $1,478.07 with interest at the rate of 3 percent per annum from May 18, 1951, $146.93 with interest at the rate of 3 percent per annum from December 7, 1953, and $500 with interest at the rate of 3 percent per annum from April 18, 1956., A motion to vacate- the summary judgment or in the alternative for a new trial was filed. The motion for new trial was overruled. From the order overruling the motion and from the judgment the appellant prosecutes this appeal. There are numerous assigned grounds for reversal but in the view taken of the record it is deemed necessary to refer to only one of them specifically. That one is that the court erred in its finding and judgment that there was no genuine question of fact presented,' and that on that account the appellee was entitled to a summary judgment. A summary judgment may be properly rendered only if the pleadings, depositions, and admissions on file together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as .a matter of law. See, § 25-1332, R. R. S. 1943; Mecham v. Colby, 156 Neb. 386, 56 N. W. 2d 299; Fidelity & Deposit Co. v. Bodenstedt, 170 Neb. 799, 104 N. W. 2d 292. Within the meaning of this exaction the record before the court disclosed that the appellant disbursed the amounts of money which the appellee contends were disbursed and for which the judgment was rendered from the guardianship estate at the times indicated and. for the purposes alleged, and in effect that she was obligated to account - therefor to. the estate. The answers [285] of appellant to the interrogatories make her obligation clear and unmistakable. There was however nothing in the pleadings or proceedings before the court or otherwise upon which to adjudicate the question of whether or not her account as a whole as guardian would sustain a summary money judgment in the amount for which judgment was rendered or in fact ■ for any amount. This was an issue raised by the appellant and of course a determination could not be made on it without a proper trial. It is true that the county court had jurisdiction to examine the account of the appellant and judicially ascertain its status. See Myers v. McGavock, 39 Neb. 843, 58 N. W. 522, 42 Am. S. R. 627. It is also true that the district court had the same jurisdiction on appeal. It does not follow however that either had the right to render a money judgment against the guardian in favor of the estate in the absence of accounting where accounting becomes an issue as it did in this case. There is nothing in the record here to indicate that whatever judgment was rendered in the county court or in the district court was made with reference to proceedings involving either finality of accounting at the time or total and ultimate finality. Under a well-established rule no action can be maintained on a guardian’s bond until the amount due thereon is ascertained by the county court. See, Bisbee v. Gleason, 21 Neb. 534, 32 N. W. 578; Langdon v. Langdon, 104 Neb. 619, 178 N. W. 178; In re Estate of Montgomery, 133 Neb. 153, 274 N. W. 487. It appears to follow reasonably, logically, and necessarily that if a final accounting in the county court is essential to a judgment against a surety on a guardian’s bond that the liability of the guardian as principal for a money judgment must depend at least upon a complete accounting at the time the liability is sought to be established. Without this there could be no way of arriving [286] at the true amount for which judgment should be rendered. It must be said therefore that there was a genuine issue as to a material fact presented in this case on which a judgment could not be rendered as a matter of law on the pleadings, depositions, admissions, and affidavits which were on file in the case, and the district court erred in rendering the summary judgment. It is observable that Western Surety Company, Sioux Falls, South Dakota, a corporation, is denominated an appellant on this appeal. Previous reference to it has been avoided since it was never made a party, but appears to- have joined the appellant without authorization of any kind. It appears that it is surety on the appellant’s bond but in nowise a party to the action. No costs should be taxed in its favor. The judgment of the district court is reversed and the cause remanded for further proceedings. Reversed and remanded.