Clark v. Sroufe , 74 Wash. 639 ( 1913 )

Gose, J.

— This is an appeal from an order entered in a guardianship proceeding, vacating a former order discharging a guardian and settling his account. The record is lengthy and somewhat involved. The following, however,' are the essential facts;

On the 4th day of June, 1900, the appellant, Adrian H. Sroufe, was appointed guardian of the persons and estates of Clyde Guy Sroufe, Minnie Elizabeth Sroufe, and Nellie Lea Sroufe, minors, they being respectively his nephew and nieces in blood. On the 8th day of August, 1908, the guardian filed a petition, accompanied with the receipts or acquittances of Minnie Elizabeth and Nellie Lea Sroufe. The petition set forth that the minors had reached their majority, that he had paid to each thereof the amount due, and that he had obtained from each thereof a complete discharge and release. On August 14th, ari order was entered in pursuance of this petition discharging the guardian and exonerating his sureties. The order recites that it appeared to the court that each of the minors was of lawful age; that, since each thereof had reached the age of majority, the guardian had entered into —“satisfaction of all claims and demands by them or either of them against him, and has paid to each thereof the sum of $1,300 in full settlement -of all claims and demands,” and, “that his said accounts and payments in all respects are hereby approved.”

. On the 31st day of October, 1910, Nellie Lea Clark, formerly Sroufe, filed a petition in the guardianship proceedings. The object sought,'to be accomplished was to have the order of settlement vacated and to require the guardian to account. In her petition; she-alleged, among other things, that she was not of age at the time the guardian was discharged; that she became of age thereafter on the 21st day of October, 1908; that the guardian induced her to execute a release by representing that her share in her father’s estate was only $1,300 when it was considerably in excess of that sum; that this money-was on deposit in a certain bank; that it was'necessary for her -to sign the rélease iii order that the guardian might pay the same to her;¹ that he did not pay said sum or any part thereof to her except $40, which was paid on September 24th, 1910; that she did not j oin in the petition for a dischargé; that she was' not served with notice of the petition, either personally or otherwise,' and that she had no-knowledge of the filing of the petition or of the entry- of the order, until about the 27th day of September, 1910. She further charged that he assumed to and continued to act as the guardian of her estate until the 25th day of October, 1910. Before the hearing she filed the affidavits of her brother and sister, Clyde and Minnie, corroborating the charges.

On the filing of the petition, the court entered a show cause order, requiring the guardian to appear on the 14th day of November, 1910, at a stated hour, to show cause why he should not be required to render to the court a full and true account and report touching his guardianship; ’ why the order discharging him should not be vacated; why his bonds should not be reinstated; and why he should not be required to give additional bond. The guardian appeared and demurred to the petition and supporting affidavits on the ground of want of jurisdiction, insufficient facts, and that the petition had not been filed within the time limited by law. On January 11th, 1911, he served and filed his affidavit and answer whereby he put in issue all the material allegations of the petition of Nellie Lea Clark and the supporting affidavits. He pleaded affirmatively that the settlement with his ward was made in good faith, after a full adjustment of the accounts, and that she “fully ratified the said settlement by signed receipts . . . and by executing a deed whereby she conveyed her interest to the property in Kitsap county.” On the same day the court entered an order vacating the order theretofore entered discharging the guardian, reinstated his bond, and directed him to give an additional bond in the sum of $6,000. This order further required the appellant to render a full, true and correct report and account within the time fixed in the order.

Thereafter and on the 6th day of November, 1911, the court issued a second citation to the appellant, requiring him to appear on the 20th day of November following, at an hour stated in the citation, “then and there to render on oath a full, true and correct account of his receipts and of his expenditures,” touching the course of his guardianship. On December 11th following, the motion of appellant to quash the citation was overruled. On December 18th following, the appellant’s default was entered. The order recites that,

“The court having heard and denied the motion of said Sroufe to quash the citation for said account on the 6th day of December, 1911, the said Sroufe being then and there represented by his attorney of record, L. H. Wheeler, and no account having been filed or served herein, and said Clark and said Whitney having in open court then and there moved the court for the default of the said Sroufe, and the court having then and there at the request of said Wheeler extended the time for filing an account herein until the hour of 9:30 a. m., on the 11th day of December, 1911. . .

The record shows that, on June 6th, 1912, two witnesses were sworn and testified in the proceeding and that the cause was continued to June 14th, when other witnesses were sworn and testified and certain documentary evidence was admitted. On June 29th, 1912, upon the testimony thus adduced, the court made and filed an account against the guardian. The order recites that it was made on the best evidence obtainable; that there had been no settlement between the appellant and his wards, and that Nellie Lea Clark became eighteen years of age on the 21st day of October, 1908. On the former date, June 29th, another citation was issued to the appellant commanding him to appear before the court at an hour stated on the 9th day of August, 1912, to show cause “why the final account of said guardian as made and filed by the said court should not be allowed and settled.” The citation, together with a copy of the account found by the court and filed, was served on the appellant on the 2d day of July, 1912. The appellant answered this citation substantially as he had answered the original petition and affidavits, and pleaded affirmatively the bar of the proceedings by the one and two years statute of limitation. On the 23d day of August following, a final order was entered settling the account between the appellant and Nellie Lea Clark and Minnie Elizabeth Whitney, formerly Sroufe, she having in the meantime united in the petition of Nellie Lea Clark.

The first point pressed is that the court erred in overruling the appellant’s demurrer to the petition and affidavits. It is argued that the case is controlled by the provisions of the code, Rem. & Bal. Code, § 464 (P. C. 81 § 1163), etc., and that both wards having arrived at full age more than one year before the petition was filed, the right of action was barred by statute. The argument overlooks the charges in the petition and affidavits, (a) that the order of settlement and discharge was made without notice to or the knowledge of the wards, and (b) that the guardian’s account had neither been settled by the court nor between the guardian and his wards, and (c) that he continued to hold himself out as guardian of their respective estates until within a month before the initiation of these proceedings. The settlement and discharge were, therefore, ex parte, and determined nothing as between the guardian and his wards. Lushington v. Seattle Auto & Driving Club, 60 Wash. 546, 111 Pac. 785; In re Sullivan’s Estate, 36 Wash. 217, 78 Pac. 945; Boston Nat. Bank of Seattle v. Hammond, 21 Wash. 158, 57 Pac. 365.

In the Lushmgton case, in speaking of the effect of a judgment entered without service or voluntary appearance, the court said:

“The right to vacate such judgments does not arise out of, nor does the procedure to secure the right depend upon, the statute. Rem. & Bal. Code, title 3, ch. 17. It is inherent in the court itself. It is no more nor less than the power possessed by every court to clear its record of judgments void for lack of jurisdiction. Dane v. Daniel, 28 Wash. 155, 68 Pac. 446.”

The rule there announced is one of the fundamentals of the law, and applies to all hearings had without notice or a voluntary appearance in adversary proceedings. Jorgenson v. Winter, 69 Wash. 573, 125 Pac. 957. The court was therefore powerless to settle the guardian’s account, and the discharge affords him no protection. It is the duty of a guardian, at the expiration of his trust, to fully account for and pay over to the wards all the wards’ estate remaining in his hands. Rem. & Bal. Code, § 1636 (P. C. 409 § 709).

The appellant in support of his demurrer has cited: Bock v. Sanders, 46 Wash. 462, 90 Pac. 597; Peterson v. Lara, 46 Wash. 448, 90 Pac. 596; Meeker v. Mettler, 50 Wash. 473, 97 Pac. 507. In the first two of these cases, it was held that, where there was a recital of due service of process in a judgment, the presumption of jurisdiction is not overcome by a defective record. In the Meeker case, the ward was present at the time the account was settled. The record of discharge in the case at bar is silent as to notice and the petition and affidavits charge that no notice was given.

The next errors assigned are, (1) that the court erred in vacating the order of discharge and in requiring the appellant to render an account, and (2) in entering a judgment against him. In the absence of a bill of exceptions or statement of facts — and there are none here — these questions are not open to appellant. Hayworth v. McDonald, 67 Wash. 496, 121 Pac. 984. The minute entries in the transcript show that parol evidence was taken.

A reference to our statement of the facts disclosed by the record will show that the appellant had ample opportunity to contest the questions of the validity of the settlement, whether the settlement was made with or without notice, and the validity of the discharge, and to participate in the accounting. Instead of meeting these questions, he chose to rely on the defense of the bar of the statute, and other defenses of a technical nature.

The judgment is affirmed.

Mount, Parker, and Chadwick, JJ., concur.