Appeal from Second Judicial District Court, Washoe County; Mark R. Averill, Judge.
Lunsford & Salisbury, for Appellant.
James T. Boyd, and Roy W. Stoddard, for Respondent.
By the Court, Sanders, J.:
This is an action against sureties on a guardian's bond. The undisputed facts are as follows:
C. C. Paul, in 1911, was appointed guardian of the person and estate of Charles A. Zitterbarth, a minor, and gave bond in the sum of $2,500, payable to said Zitterbarth, with W. H. Noyes and Dan O'Keefe as sureties. The bond is several and joint in form, conditioned on the faithful execution of the duties of his office according to law, and binding on the heirs, executors, and administrators of the obligors. In August, 1915, O'Keefe died testate. In September, 1915, Dan Caddigan was appointed executor of O'Keefe's estate. In September, 1915, the executor published notice to creditors in all respects as required by law, and in April, 1916, the executor filed his final account as such. In March, 1916, Paul, by court order, filed his first account in the matter of the guardianship. This account was rejected, and thereafter such proceeding was had upon his second account as resulted, in June, 1916, in his removal and judgment against him in the sum of $3,421.96, moneys of his ward found to have been appropriated by Paul to his own use, in violation of his trust. Execution issued on the judgment and was returned wholly unsatisfied. In August, 1916, W. E. Pruett, the respondent, qualified as guardian of Zitterbarth, and in December, 1916, Pruett brought this action against Noyes, the survivor, and Caddigan, the executor of the deceased, to recover a joint and several judgment in accordance with their joint and several undertaking. Caddigan, the executor,
demurred to the complaint upon numerous grounds, principally that there is a misjoinder of parties defendant, as a joint action cannot be maintained, in the absence of legislative authority, against the survivor and the deceased surety, and also that the complaint fails to allege that the claim was filed with the clerk of the court within three months after the date of the first publication of notice to creditors of the estate of Dan O'Keefe, deceased. Rev. Laws, 5964.
The demurrer was overruled. Thereupon Caddigan, by his answer to the complaint, denied generally its allegations, and set up by way of affirmative defenses, among others, the misjoinder of parties defendant and the non-claim statute. The court sustained the demurrer to these defenses and granted plaintiff's motion to strike the same from the answer. The cause was tried by the court without a jury, and the court rendered a joint and several judgment against the defendants for the sum demanded in the complaint, $2,500, and ordered that a copy of the judgment be filed in the matter of the estate of Dan O'Keefe, deceased, and with the executor of said estate, and that the judgment be paid in due course of administration. Caddigan, the executor, appeals to this court from the judgment and the order overruling and denying his motion for a new trial.
The district court was of the opinion that Caddigan, the executor, was properly joined with Noyes, the survivor, because he was a party in interest. Rev. Laws, 4999. By the greater weight of authority, if the common-law rule remains unaffected by statute in case of the death of one of the obligors, a joint action cannot be maintained against the survivor and the representative of the deceased. 5 Cyc. 822. The question is: Does the common-law rule prevail under our practice? If, as is argued, the joinder of the survivor with the representative defeats the action because the same judgment cannot be rendered against both, we reply that the same difficulty would be presented where the representative is brought in by reason of the death occurring after the
action is brought. If the rights of the parties could be determined when the representative is brought in by reason of the death occurring during the pendency of the action, then they could be determined equally as well where the death occurred before the action was commenced. Rev. Laws, 5004; Erie County v. Baltz, 125 App. Div. 144, 109 N. Y. Supp. 308. Furthermore, under our practice, where the undertaking is a several as well as joint obligation, as is the case here, the court by statute is given the discretion to render a separate judgment. Rev. Laws, 5240; Tinkum v. O'Neale, 5 Nev. 93; Evans v. Cook, 11 Nev. 72. Our practice act also provides that the court may grant the plaintiff any relief consistent with the case made by the complaint and embraced within the issue. Rev. Laws, 5241; Lawrence v. Doolan, 68 Cal. 309, 5 Pac. 484, 9 Pac. 159.
1. Entertaining these views, we conclude that the reason for the common-law rule does not prevail under our practice. The judgment is not erroneous, because against one it is de bonis propriis, and against the other de bonis testatoris.
2. The next question presented for our determination is: Do purely contingent claims fall within the non-claim section of the practice act relative to the filing of claims against the estates of deceased persons? Rev. Laws, 5964. Without going at large into the inquiry as to what claims must be filed under this section, it is sufficient for the purposes of the point discussed, and upon which the case was made to turn in the court below, to say that, where the claim if payable or to be satisfied at a future date rests in contingency and it is uncertain whether or not any demand will accrue, it is not such a claim as must be filed. Jones v. Cooper, 2 Aikens (Vt.) 54, 16 Am. Dec. 678; Woodard v. Herbert, 24 Me. 362; Loring v. Kendall, 1 Gray (Mass.) 314; Mann v. Everts, 64 Wis. 372, 25 N. W. 209; ...