The record-union., 1895-10-01

son of the guardian, and possessing, un-
der the statute, Jurisdiction of the subject
matter of the settlement of his account,
and the guardian being without the Juris-
dlction OF the court and not amenable to
process of attachment, and having failed
TO file his account, il was within the prov
inoe of the court to (as was said in Graft
VS.. Mesmer, 81 Cal. 637) cause the ac-
count to be made up, audited and settled
upon such evidence as should be adduced
on behalf of the ward
Where jurisdiction is conferred upon
court by the Constitution or statute all
the means to carry it into effect are also
given, and ii the course OF proceedings
are not specifically designated by the
code any suitable mode may be adopted
which may appear most conformable to
the code. Section 167. c. G. P.)."
After referring to numerous cases and
sections OF the code the court continues:
I'VE conclude that the account as set
tied by the court was adjusted within the
lines of the law, and Is binding upon the
sureties of the guardian, the appellants
here, and hence that the various objec-
tions going to the validity of the account
as settled were properly overruled by the
court below, and the several errors as
signed upon such rulings cannot be up
held.
The court gave judgment against the
defendants as suretieS for the sum OF 81,
go, the amount of their undertaking, with
legal interest thereon from October 3,
1892. the date Of the decree settling the
account and adjudging its payment.
"The general rule is that judgment can
be rendered against sureties for a greater
amount than the penalty OF the bond,
and they cannot be held liable for inter-
est beyond the penalty of the bond, ex-
cept for such interest AS accrued from
their own default in unjustly withhold
ing payment after having been notified of
the default of their principal (Murfree
on official bonds, Sec. $50 and cases cited J
in the absence of notification. inter-
est is only allowed from the issuance of
the writ.
"The complaint AYERS a demand of
payment from the sureties after October
3. 1892, and previous to the filing of this
complaint The complaint was filed Oc-
tober %. 1892
Under such an allegation in the COM
plant we are not at liberty TO assume
that the demand was made until the last
moment before filing the complaint.
ut follows that the interest for some
nineteen days was improperly allowed.
The amount is less than 50, a trihe scarcely
worthy of an appeal.
1.-The point being made, however, we
must hold that there was error In allow
ing interest prior 10 October %, 1892.
"The order denying new trial should
be affirmed, and the cause remanded to
the court below, with directions to
modify the Judgment by striking there
from the allowance of interest from Oc-
tober 3, 1892, to October %, 1892: and, so
modified. the judgment should be af-
firmed, each party to pay his own costs
on this appeal
The opinion was prepard by Supreme
Court Commissioners Searls, Britt and
Belcher, and declared to be the decision
of the court by Justices Mcfarland,
Temple and Henshaw, comprising De-
partment Two.
The case of Harry f. q. Trumpler
against the same defendants, and involv-
the same matter, Is treated likewise.
Messrs. Holl IL Dunn of this city were at
torneys for the plaintiffs.
There are three similar cases now pend
ing in the Seperior Court of this county,
IN which the Trumplers are the plaintiffs,
and d. X. Hunt, Z. IL. Tryon and c. A.
Jenkins are the defendants, and which
will no doubt be treated like the one re-
Gently decided by the Supreme Court if
they are ever appealed to that body.