Bearns v. Gould

The objection that the complaint does not state facts sufficient to show that the surrogate had jurisdiction to make the order requiring the guardian Britton to pay over the amount with which he was charged upon the accounting, and to remove Britton as guardian of the estate, would have been,a good one but for the act of 1870, which provides that the objection of want of jurisdiction to the surrogate’s orders and decrees shall not be taken, except by appeal, in the manner prescribed by statute, or in a proceeding before the surrogate to set aside, open, vacate or modify them ; the same power to vacate or modify the decrees or orders of his court being given by this statute to the surrogate as is exercised by courts of record of general jurisdiction. (Laws of 1870, chap. 359, vol. 1, p. 826, § 1.) This provision is not, as the appellant has argued, limited to cases where the objection to the jurisdiction is made in' proceedings in the surrogate’s court. It is general in its character, and applies to any case in which an objection to the jurisdiction of the surrogate to make an order or decree is raised collaterally in any suit or proceeding. There is nothing in the provision itself to indicate that any such limitation was meant. What is plainly meant, is that the same rule is to be applied to the orders and decrees of the surrogate that is applied to orders and decrees made in courts of record of this State.

We must, in this suit, assume that the surrogate had jurisdiction to make the order which he did. It is averred that he made an order that Britton should pay over to the plaintiff the moneys received by him as guardian ; that upon his default in so doing the plaintiff was authorized to prosecute the bond, and that the bond was assigned to him for that purpose, that is, as I understand the averment, the bond *386was assigned to him by the order which the surrogate made. This was, in the language of the act of 1839 (Laws of 1839, p. 635, § 65), assigning the bond to the person in whose favor the decree was made for.the payment of the-money, for the purpose of being prosecuted. It could not be so assigned under that act unless an execution had been issued-and-returned, unsatisfied. But this is not a matter which can be enquired about in this suit collaterally. It was not necessary, therefore, to aver it, as .we mu.st assume, under the act 'of 1870, that the surrogate had jurisdiction to make the order, and if he acted without jurisdiction, the only remedy was to appeal from it, or to apply to him to vacate it; which might be done by any party who was affected by it, in a summary application by pétition, motion, or otherwise, to the surrogate, upon due notice to the person for whose benefit the order was obtained.

The bond having been assigned to the plaintiff he was entitled to bring an action upon- it in his official character as a guardian, and it is in that character that he has brought the suit. The averment in the complaint is, “ Joseph H. Beams, as guardian of the estate of Alexander M. Fisher, a, minor, by C. W. Bangs, his attorney, brings this suit against David H. Gould, defendant.” But for the assignment of the bond to the plaintiff by this order, the suit, by the Revised Statutes (2 R. S. 152, § 9), would.have to have been brought in the name of the ward by the guardian, the ward in that case being the party,- and the guardian simply a perron appointed by the court to look after the interests of the ward and manage the suit for him. (Sinclair v. Sinclair, 13 Mees. & Welsby, 645, 646.) But the bond, by the order of the court, having been assigned to the plaintiff, the suit was prqperly brought by him in his official character, the provision In the Revised Statutes not applying in such a case,

The judgment will therefore have to be affirmed.

Larbemore, J., concurred.

Judgment affirmed.*