Opinion
6 Div. 810.
June 27, 1918.
Appeal from Circuit Court, Jefferson County; Hugh A. Locke, Judge.
Coleman Coleman, of Birmingham, for appellant. Stokely, Scrivner Dominick, of Birmingham, for appellee.
It thus appears from the foregoing statement of the case that, by this bill the surety seeks to assert a defense which it is insisted the guardian could and should have made against the claim of the ward on account of moneys received in settlement of the litigation instituted by him — and this is sought to be done after the matters here complained of have become the subject of contest on the final settlement in the probate court, and finally adjudicated in this court — resulting in a final judgment in favor of the ward against the guardian.
It is now settled law in this jurisdiction that, under such circumstances as here disclosed, the final decree rendered against the guardian is binding and conclusive on the surety in the absence of proof of fraud or collusion. In Hailey v. Boyd, 64 Ala. 399, the court said:
"The decree against the guardian is conclusive on the sureties, because they are privies in contract. For the faithful performance of all the duties required of the guardian by law, they are bound by the terms of the bond; and a full settlement of his guardianship in the court of probate or the court of chancery, as the ward may elect the one or the other forum, is a duty enjoined upon him by the law. The decree rendered against him is in the nature of a judicial admission made by him; is an act done in the performance of his trust and duty, and, for this reason, is binding and conclusive on the sureties, and not upon the theory that they are parties to the record, directly or indirectly."
Speaking of a similar question, involving the liability of the surety on the bond of executors, this court, in Grimmet v. Henderson's Adm'r, 66 Ala. 521, said:
"The executors should have prevented the rendition of the judgment against them by interposing such defenses by plea as the facts of the case authorized. Their neglect to do so, in the first suit, is conclusive on both themselves and the sureties in this action. The sureties have, by the execution of the bond, assumed the office of guarantors for the faithful performance of the executorial duties of their principals. This includes the duty to pay on demand all debts ascertained judicially to be due by the principals in their capacity as executors, provided the estate is not declared to be insolvent. The failure to pay such judgment is a breach of the bond, and the sureties, as well as the principals, are estopped from asserting anything to the contrary."
In Martin v. Tally, 72 Ala. 23, it is held that such a judgment or decree against the administrator on final settlement of his accounts is equally conclusive on his sureties in the absence of fraud or collusion as to the matters of account. But it was pointed out that such a decree was not conclusive as to the factum of the bond, or other defenses personal to the sureties. In the instant case, however, no such situation is presented, as no defense personal to the surety is here sought to be interposed. The principle here applied was recognized in the early history of this court, and is also in accord with the great weight of authority in other jurisdictions. See Chilton v. Parks, 15 Ala. 671; Williamson v. Howell, 4 Ala. 693; Freeman on Judgments, § 180; note to Ballantine v. Fenn, 40 L.R.A. (N.S.) 698, where numerous authorities bearing upon this question are collated. See, also, in this connection, Carpenter v. Carpenter, 79 So. 598.2 There is nothing in the case of Smith v. Jackson, 56 Ala. 25, and U.S. F. G. Co. v. Pittman, 183 Ala. 602, 62 So. 784, cited by counsel for appellant, at all at variance with this well-recognized rule. The respondent is but pursuing the language of the statute, which declares that all final decrees rendered against the guardian on a final settlement have the force and effect of a judgment at law, on which execution may issue against the guardian and against his sureties; and that upon such decrees process of garnishment may issue from courts of probate in like cases and manner as it may issue on judgments in courts of law. Section 4439 of the Code of 1907.
We are therefore of the opinion that the final decree rendered upon the guardian's final settlement of his accounts, involving the question here sought to be reviewed, is binding and conclusive upon the surety, and is not attacked for collusion or fraud. We are further of the opinion that the bill attempting to here interpose an alleged defense of the guardian is without equity. As the bill shows that the funds for which the guardian was held accountable in the final decree reached the hands of the guardian in the year 1906, we do not see that any averment as to the petition of the surety — complainant here — subsequently in the year 1908, for its discharge from liability on the bond of said guardian, has any material bearing upon the equity of the bill. Nor do we see upon what principle the complainant would be entitled to any relief as to either the principal or interest on account of the matter of continuance of the settlement by agreement of the guardian with the ward, pending litigation.
It results, therefore, as our conclusion, that the bill is without equity, and that the motion for temporary injunction was correctly denied. The decree of the court below will be here affirmed.
Affirmed.
ANDERSON, C. J., and McCLELLAN and MAYFIELD, JJ., concur.