State ex rel. Leutert v. Berger

GOODE, J. The appellants’ abstract of tbe record contains an affidavit by one Prank D. Gebhardt, tending to prove that in fact.no judgment was entered in tbis cause, but that' one of the attorneys for the plaintiff wrote up a memorandum of a judgment and gave it to the clerk, who entered it without it being seen or approved by the judge of the court, and this is assigned for error. Counsel certainly do not expect us to disregard the transcript of the clerk of the circuit court showing a final judgment in the cause, on a mere ex parte affidavit contained in an ■abstract of the record to the effect that none was entered. If' the case was not decided by the circuit court and no judgment was ordered to be entered, the unauthorized'entry of one by the clerk on the record would have to be vacated or set aside by a proper application to, or proceeding in, the court on whose record the wrongful entry was made. This court is bound by the transcript and must and will assume that it speaks the truth in regard to the proceedings in the court below, until it is corrected, if erroneous, in a proper mode. State v. Blunt, 110 Mo. 322. If we understand appellant’s argument against the sufficiency of the petition, it is that the law presumes generally that guardians and curators, as well as every one else, perform their duties, and that, therefore* a presumption arises that if J. ~W. Staggs, the first guardian and curator, had in his hands money belonging to his wards at the time of his death, his personal representative afterwards accounted for said money to whomsoever was entitled to receive it, which presumption should have been negatived by an averment in the petition; and the point is also made in this connection, that there was no liability on the bond until the deceased curator’s administrator had made a settlement with the plaintiff who succeeded him. These two positions are based on a statute which provides that [637] in case of the death of a guardian or curator, ms administrator or legal representative shall make settlement with his successor and deliver the property and money belonging to the minor to such successor (R. S. 1899, sec. 3533), and the argument is that it must be taken for granted the statutory course was followed in this case in the absence of an averment to the contrary. A compliance with that statute is'not and could not rationally be a condition precedent to the maintenance of an action on a deceased curator’s bond by his successor for a breach; for if it is fully complied 'with, there can be no occasion for an action on the bond, since the deceased trustee’s representative-will have delivered to the successor everything for which the decedent was answerable. What appellants mean, likely, is, that the plaintiff should have alleged a demand of Staggs’s administrator that he settle with plaintiff and turn over to him the money of the minors which Staggs received and have also alleged that the administrator made a settlement which showed no such fund had come into his hands. But this would be requiring too much; there may be no administration of the estate of a defaulting curator — no representative appointed. We do not know there was one appointed for Staggs’ estate; and it is surely not obligatory on the successor in such cases to have an administrator appointed and. make settlement with him before the successor can sue the first curator’s sureties; for no statute prescribes such a course. The section cited above has nothing to do with the remedy on the bond for breaches, but merely empowers the representative of a deceased curator, into whose hands have come funds belonging to a minor’s estate which his decedent held, to account for and deliver the same to the new curator as a convenient mode of transferring the fiduciary assets to the succeeding trustee. It does not purport to be the basis for an action on the decedent’s bond as curator, and such is our understanding, not only of the statute, but of its construction in the case of Cohen v. Atkins, 13 Mo. 163. Appellants’ two positions are [638] in truth inconsistent and show a confusion of ideas. They contend that the petition states no cause of action because it fails to aver a settlement was not had between respondent and Staggs’ representative; and also contend it fails to state a cause of action in not alleging in effect that a settlement was had, it being indispensable, they say, to respondent’s right to sue. If the deceased received money belonging to his ward and no account was ever rendered of it, that constituted a clear breach of his bond for which the sureties were answerable. Why first settle with his administrator, granting there was one ? That settlement would not conclude the sureties as the final settlement of an administrator does his sureties. State to use v. Martin, 18 Mo. App. 468. If Staggs’ administrator had in fact paid the money sued for in this action to the plaintiff, defendants should have answered to that effect. It is true, the law presumes in favor of honest conduct and the discharge of duty; but we think the allegations of the petition are sufficient to negative the theory that the money received by Staggs as curator has been honestly accounted for either by himself or'any one else, to the minors or any one for them, even allowing that such facts must be shown by the petition. It will be observed that the judgment contains a recital that the court found the first curator had wholly failed, declined and refused to account to the minors or their guardian or curator, or any one authorized to receive the money belonging to them, but had appropriated and applied the same .to his own use. As according to the judgment entry there was testimony adduced, there must have been sufficient proof to satisfy the court that the allegation in the petition of a failure on the part of Staggs to account (and which we rule to be a good allegation of a failure to account to any one for the minors) was established. It is contended the petition is fatally defective in charg [639] ing that Staggs had not accounted to the minors, whereas he was bound to account not to them but to his successor. That argument is too technical. It would do violence to reason to assume, in this action by the succeeding curator, that the allegation that no settlement had been made with the minors left room for a legitimate inference that plaintiff had himself been paid. The only- rational import of the averment is that there had been a failure to pay the money to the minors in the only way it could lawfully be paid to them; namely, to the person entitled to receive it for them — that is, to the plaintiff. Our conclusion is that the petition stated a cause of action which is good against a general demurrer. State ex rel. v. Carroll, 63 Mo. 156. It seems the court erroneously compounded the interest, which made the judgment excessive, and the true amount for which it should have, been entered was nine hundred and seventy-two dollars and five cents. Respondent has offered to remit all in excess of said last-named sum, so the judgment of the court below is modified by reducing it from the sum of eleven hundred and fourteen dollars and twenty cents to the sum of nine hundred and seventy-two dollars and five cents, and with that modification it is affirmed. Bland, P. J., .and Barclay, J., concur.