#### Hastings v. United States Fidelity & Guaranty Company.

Opinion delivered January 11, 1915.

1. Pleadings — amended complaint-service oe summons — new parties. —A general demurrer to plaintiff’s complaint being sustained, plaintiff filed wbat was termed an amended complaint, naming appellee and others as defendants. Held, a summons being issued upon tbis complaint against appellee, it was in effect tbe beginning of a new suit, tbe plaintiff having tbe right to join all tbe parties ais defendants, against whom a cause of action could be alleged.

2. Appeal — striking out complaint — trial—judgment.—Tbe order of court in striking out appellant’s amended complaint, which was in effect a dismissal of appellant’s cause of action against appellee, held, to be a final judgment from which an appeal may be prosecuted.

3. Insane person — appointment oe guardian — probate court — act of clerk. — Tbe probate court only has tbe power to appoint a guardian of an adult insane person, and tbe clerk’s issuance of letters of guardianship without an order and adjudication of said court is without authority and void.

4. Insane person — guardian—void appointment. — Where tbe appointment of a guardian of an insane person is void, tbe probate court acquires no jurisdiction of tbe person or estate of said insane per*221son, and the orders thereof approving and confirming the purported settlements of such guardian are void.

5. Guardianship — insane person — void appointment — legal responsibility. — Where the appointment of a guardian for an insane person is void, he may he treated in a court of equity as an equitable guardian and held legally to account for the property coming into his hands.

6. Guardian’s bond — invalid appointment — liability of surety. — The surety on the hond of the guardian of an insane person who goes 'voluntarily on the hond, and induced the delivery of the property of the insane person to the guardian, will be liable on the same, although the appointment of the guardian is held to be void.

Appeal from Benton Chancery Court; T. H. Humphreys, Chancellor;

reversed.

STATEMENT BY THE COURT.

B. T. Hastings and three other of appellants, ■brought /suit for an acloounting against J. C. January as guardian and curator of Sarah E. January, their relative, alleging his failure to account for certain of her estate that came into his hands by reason of his appointment as guardian. A demurrer to the complaint was sustained and appellants .on August 21, 1913, joining all the other heirs but one, of Sarah E. January, deceased, as plaintiffs, filed their 'amended complaint against said January, the appellee bonding company, and Sopha Gad-berry, the other heir, defendants.

The complaint ■alleged that the plaintiffs and Sopha Gadiberry, defendant, are the /sole heirs at law of Elizabeth January, the same person named as Sarah E. January, who died intestate, May, 1911. That in March, 1906, the defendant, J. C. January, applied to the clerk of the probate court of Benton County for appointment as •guardian, and curator of tbe person .and estate of said Elizabeth January, as a person of unsound mind. That said J. C. January as principal and the United States Fidelity and Guaranty Company as surety, entered into a bond to the State of Arkansas for /the use of said deceased in the sum of $4,000, conditioned that the said J. C. January would well and faithfully perform and dis*222charge- -his duties as -such trustee. A copy -of the bond as follows was s-et out:

“guardian and curator's bond.

“Know all men by these presents: That we, J. O. January, as ¡principia!, and the United States Fidelity & Guaranty Company, as surety, bind ourselv-es, our heirs, etc., to pay to the State of Arkansas for the- use of Sarah E. January, the sum of $4,000.

“But upon -condition, that whereas, the said J. C. January has been appointed by the probate court as guardian and curator of the person -and estate -of Sarah E. January, a person of impaired mind.

“Now if the said J. -C. January shall well and faithfully discharge his -duties as such guardian and curator according to law, then this obligation to be void, -otherwise to be and remain in full force and effect.

“Witness our hands this 16th day of February, 1906.

“J. C. January,

“United States Fidelity & Guaranty-Co.

“By W. A. Burks, General Agent.”

It was further alleged that said January took charge of the person and estate of said Elizabeth January and collected and received various sums of money, specifying them, including those set out in the first complaint. That the defendant, January, was 'appointed guardian and curator by the iderk of the probate court, who issued letters -of guardianship to him without authority of law or direction -of the court, and that said January filed several semi-annual settlements in the probate court, charging himself with certain -sums received, including a part of the matters -set out in the- complaint 'and asking credit for divers sums against said Elizabeth January, aill of which -settlements and credits were confirmed by orders of the probate- court, without authority of law. That the orders of confirmation were null and void, for the reason that said Elizabeth January was -over the ¡age of fifty-years at -all times aforesaid and had never been adjudged insane by the probate .court or any other court or tribu*223nal. That during all the time from March 1, 1906, up to the death of Elizabeth January, the defendant, J. C. January, had full control and management of both her person and estate and kept and maintained her at his home as a member of the family; that the sum of $20 per month was a fair ■compensation for such maintenance and support; that he had the possession and custody of all her property and funds since receiving the same, and failed to turn over the same to the plaintiffs or any one else for their benefit or to any other person authorized to accept or hold same for the benefit of her estate.

That by reason of the execution of the bond aforesaid, the relatives and heirs of Elizabeth January permitted the defendant, J. C. January, to take full charge, management and control of her person and estate. Prayer that J. C. January be required 'to fully-account for all moneys .and property received by him for 'said Elizabeth January, and, after being allowed a reasonable compensation for her care 'and support, that they have judgment against him and the appellant bonding company as surety for the remainder thereof.

A summons was issued upon the amended complaint for appellee company and duly served upon it on the same day, August 21, 1913. On the 26th of November, 1913, ■the appellee guaranty company filed a separate motion to strike the amended complaint from the files, alleging as grounds therefor, first, that it substantially changed the claim sued upon from the one set up in the original complaint; second, because it substituted parties defendant different from those in the original complaint and ■against whom no cause of .action was stated therein, and because the original complaint did not state a. cause of •action against it -and .therefore could not be amended so to do.

January filed a like motion. The court overruled January’s motion to strike, and sustained the motion of ■appellee upon the ground that the amended complaint substantially changed the claim sued ion from that set up in the original, and ordered it stricken from the files, *224in so far -as it attempted to 'allege a cause of action against appellee. Appellants excepted to this ruling and from the judgment appealed.

Walter Mathews, for appellants.

Filing the amended complaint and 'causing summons to be issued and served 'amounted to the bringing of a new suit. 59 Ark. 441; 64 Ark. 348; 65 Ark. 495; 81 Ark. 579; 85 Ark. 251; 96 Ark. 524; 97 Ark. 19.

The sufficiency of a pleading must be raised by demurrer and not by motion to strike. 30 Ark. 436.

Dick Rice, for 'appellee.

Authorities relied on by appellant are not applicable here. Appellee -did not file an answer but filed a motion to strike, and only appeared specially for that purpose. The law-as announced by this court in Kansas City Southern Railway Company v. Tonn, we think, applies in this case. 102 Ark. 20, 143 S. W. 577.

If the original complaint did not state a cause of action against appellee, it could not be amended so that it would state one, because an -amendment can only be made to -a -complaint which -states a cause of action defectively. 110 Ark. 139.

Walter Mathews, for -appellant in reply.

The appointment of a guardian for a person of unsound mind is a court order, after due notice and the person brought before the court and duly adjudged to be insane, -and -the clerk has no authority in -the -premises at all. Kirby’s Dig., § § 4002, 4005; 32 Ark. 674; Id. 97, 104; 19 Ark. 515.

Upon the appointment of January by the clerk and his obtaining possession of the person and property of the insane person, he became a de facto, or equitable, guardian, and liable to -account for -the property in a court of -equity. 21 Oy-c. 20, and -cases cited. The -clerk’s appointment being void, the- probate court acquired no jurisdiction, and the settlements and the orders -of the probate court approving and -confirming the same are void, and can be -attacked in -a collateral proceeding. 21 -Cyc. 178, *225179; 10 N. E. 352; 74 Ark. 82; 50 Ark. 188-190; 48 Ark. 151; 47 Ark. 460; 29 Ark. 47.

Appellee is liable on the bond, notwithstanding January was not legally appointed guardian. 65 Am. St. Rep. 122; 27 Atl. 42; 55 Am. St. 569, and note; 20 Am. Dec. 463; 50 Ala. 315; 49 S. E. 827; 9 Ky. 172; 46 N. E. 1095; 21 Am. St. 461; 31 N. C. 250.

Kirby, J.,

(after stating the facts). (1) A general demurrer was sustained to the original complaint and the plaintiffs therein joining all the other heirs, but one made defendant, with themselves, filed what was termed an amended complaint against the defendant in the original complaint, the appellee surety company, and the other heir of the deceased, Sarah Elizabeth January, who was not joined as a party plaintiff. A summons was issued upon this complaint against 'appellee company and it was in effect the beginning of a new suit, the plaintiffs having the right to join all parties as defendants against whom a cause of action could be alleged. Ferguson v. Carr, 85 Ark. 251; Choctaw, Oklahoma & Gulf Rd. Co. v. Hickey, 81 Ark. 579; Greer v. Vaughan, 96 Ark. 524; Warmack v. Askew, 97 Ark. 19.

(2) The court erred, therefore, in striking out the amended complaint, which was in effect a dismissal of appellant’s action against appellee and a final judgment from which an appeal eoulld be prosecuted.

(3-4) If the motion be treated as a demurrer to the sufficiency of the complaint, which is not 'the pr oper practice, it still should not have been sustained. The complaint alleged that plaintiffs were 'the only heirs and next of kin to the deceased insane person, that her estate had come into the hands of the defendant, J. C. January, as alleged guardian and curator by reason of the execution of the bond by appellee company, that Ms appointment as guardian was void, being made by the clerk of the probate court only and without authority of law, that he had not accounted for the estate coming into his hands by reason of his appointment; that he was in effect an equitable or de facto guardian and should be required so to *226do iand to pay to appellants all sums of money to which they were entitled, after he was allowed ia reasonable compensation for the support .and maintenance of the said insane person. The probate court only ¡had. the power to appoint a guardian of Sarah Elizabeth January, an adult person of unsound mind, and the clerk’s issuance of letters of guardianship without an order and adjudication of said court was without authority and void. The appointment being void, the probate court did not acquire jurisdiction of the person or estate of said insane person and the orders thereof approving .and confirming the purported settlements, of such guardian were void.

(5) It does not follow, however, that the said January, who acted as g-uardian and took possession of the estate of the- person of unsound mind after his attempted appointment by the clerk of the probate court and his surety upon the bond given before taking such charge, are not responsible for 'his properly accounting for said estate in accordance with the terms of ‘the bond. He may be treated in a court of equity .as an equitable guardian and held .legally to account for the property coming into his hands. 21 Cyc. 20; Hazelton v. Douglas, 65 Am. St. Rep. (Wis.) 122.

(6) The complaint shows in this case, as in Hazleton v. Douglass, -that, .although the person attempted' to be appointed was never the legal .guardian of the person of unsound mind, he was granted letters of guardianship by the clerk of the probate court without authority, and was -supposed to be, and that he gave the bond sued upon with ,appellee company as surety, by whioh means he obtained possession of her estate. The court there held the complaint .sufficient and the bond valid, saying,4 4 The bond was given voluntarily; it contravened no .statute; it was not even repugnant to the policy of the law; it induced the delivery to the principal of the supposed ward’s entire fortune.” The ‘bond herein was given under like conditions, and we see no reason why it did not constitute a valid obligation against the surety. See, also, Hauenstein v. Gillespie, 73 Miss. 742, 55 Am. St. Rep. *227 569, note; In re Doner’s Estate, 27 Atl. 42; Fridge v. State, 20 Am. Dec. 463; People v. Medart et al., 46 N. E. 1095; Griffin v. Collins, 49 S. E. (Ga.) 827; Iredell v. Barbee, 31 N. C. 250; Corbitt v. Carroll, 50 Ala. 315.

It follows that a good canse of action is stated in the complaint. For the error committed, the judgment is reversed and the canse remanded for further proceedings according to law and not inconsistent with this opinion.