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eBook details

• Title: Snidow v. Montana Home for the Aged
• Author : Supreme Court of Montana
• Release Date : January 03, 1930
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 66 KB

Description

1. Pleading — Waiver of right to demur or move. A defendant, failing to demur to complaint, as authorized by the district judges order, or to request leave to file demurrer under the statute, waived right to demur or move to make the complaint definite and certain and hence could not object to the introduction of evidence or the hearing of the case on the ground that the judges order requiring defendant to file answer after overruling of his motion to strike the complaint denied him the right to demur to or otherwise test the sufficiency of the complaint. 2. Pleading — Complaint held not duplicitous. A complaint, alleging that defendant owed specified sum on loan made to him by one plaintiffs guardian from guardianship funds during such plaintiffs minority and executed note to guardian in such sum as evidence of indebtedness and new promise to pay it, which note was assigned to plaintiffs after the ward attained majority, was not duplicitous as intermixing actions on note and on debt to guardianship estate, but stated single cause of action for amount of debt and relied on note only as new promise tolling the statute of limitations, though the complaint prayed for attorneys fees. 3. Guardian and ward — Effect of reaching majority — Rights and duties. A minors guardian had absolute control over the management of wards estate, subject to the courts authority, during the wards minority, but ward, after reaching majority, could sue in her own name for any debts due estate. However, guardian still owed duty to make final accounting and settlement. 4. Guardian and ward — Limitation of actions — Moral obligation to pay debt. The running of the statute of limitations against prosecution of action by guardian or by ward after reaching majority to collect debt to wards estate for money loaned debtor by guardian from guardianship funds, did not discharge the debt itself, but the moral obligation to pay it remained, and the guardian owed the duty to make every effort to collect the amount due for the wards benefit. 5. Limitation of actions — Revival of obligation. Promissory note of 1937 revived the obligation and the statute of limitations did not begin to run until the note became due. It was held further that it was immaterial that the note was payable to the guardian since he was trustee for the ward. 6. Pleading — Allowance of amendments discretionary. Allowance or denial of leave to amend answer during trial is within the trial courts sound discretion and such will not be disturbed on appeal in the absence of a showing of abuse of discretion. 7. Pleading — Effect of amendment. Where the amendment sought would have materially changed the issues in the midst of the trial it was not an abuse of discretion to deny the amendment. 8. Release — How pleaded. A release is an affirmative defense and must be specially pleaded. It cannot be admissible under defendants general denial. 9. Guardian and ward — Compromising debts of ward. A guardian may not release, compromise, or settle a debt due his wards estate without authorization to do so from the court. Page 338 10. Guardian and ward — Remedy against guardian. Where one borrowing guardianship funds wrongfully lent by minors guardian, never repaid part thereof, the ward, after attaining majority, could proceed against the guardian or collect the balance due from the borrower. 11. Appeal and error — No prejudice from overruling motion for non-suit. Where plaintiff having no claim to fund, for which she and former ward sued one to whom the guardian wrongfully lent fund, was one of assignees of borrowers note, relied on by plaintiffs to toll the statute of limitations, the defendant was not prejudiced by the courts overruling of his motion for non-suit as against the wards coplaintiff; any disputes as to ownership of proceeds being strictly between the plaintiffs.

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