Moody v. Pacific Surety Co.

This is an appeal from a judgment in favor of plaintiff and against the surety on the bond of W. M. Smith, as administrator of the estate of A. E. Moody, deceased.

The conceded facts are that in January, 1905, Smith was appointed administrator of the estate; in February, 1911, he filed his account as such administrator, showing $2,577.66 in his hands belonging to said estate. In January?, 1914, the probate court removed Smith as administrator and appointed respondent in his stead; in February, 1917, a citation was. issued to, and personally served on, Smith, requiring him to render an account; upon his failure to appear the respondent, by order of the court, rendered an account for him, showing $2,577.66 in Smith’s hands owing to the estate; this account was settled, and in April, 1917, a written demand for the payment to respondent of this sum was made on appellant before the commencement, of this action. Respondent in this action sued the surety for the amount shown by this account to be due from Smith to the estate, and recovered judgment for that amount.

[1] Appellant insists that the complaint failed to state a cause of action, in that it failed to allege nonpayment by…