Dec. 1901.] Opinion of the Court-WHITE, J. It is true that the writ of garnishment was in aid of the original judgment, but the proceeding against the garnishee by the respondent in the court below constituted, as far as the garnishee was concerned, an independent civil action at law for the recovery of a money judgment against the garnishee. The amount in controversy in this action was the amount claimed to be due from the garnishee to Frank Emel, for which the respondent was entitled to recover a judgment against the garnishee up to the amount of respondent's judgment against Frank Emel. This amount might be more or less than $200, but the amount must exceed $200, or this court has not jurisdiction; and it must affirmatively appear somewhere in the record that the amount claimed to be due from the garnishee to the debtor exceeds $200 before this court will assume jurisdiction. Where the pleadings in a proceeding like the one under consideration fail to show the amount claimed to be due from the garnishee to the principal debtor, and the evidence is not before this court, and the amount cannot be otherwise determined from the record, we are controlled by the findings of the court below. In this case the amount found to be due from the garnishee to the principal debtor, and for which judgment was rendered against the garnishee in favor of the creditor, was $35. This court therefore had not juris diction, and the appeal must be dismissed. We have not considered the other objections to the juris diction of this court. The appeal is dismissed, with costs to the respondent. REAVIS, C. J., and DUNBAR, HADLEY, FULLERTON, ANDERS and MOUNT, JJ., concur. Opinion of the Court-DUNBAR, J. [26 Wash. [No. 4070. Decided December 10, 1901.] JOSEPH DICKMAN, Appellant, v. PAUL STROBACH, Defendant; D. M. DRUMHELLER et al., Respondents. A bond given by a guardian conditioned to account for the proceeds of sale of his ward's real estate, under Bal. Code, § 6427, prescribing the statutory duties of guardians of insane persons, is not an obligation in itself, but merely operates as collateral security for the proper discharge of the duties imposed on him by statute; and an action for the breach of such duties would be governed by the statute of limitations barring the commencement of actions "upon a contract or liability, express or implied, which is not in writing, and does not arise out of any written instrument." Appeal from Superior Court, Spokane County.-Hon. LEANDER H. PRATHER, Judge. Affirmed. Robertson, Miller & Rosenhaupt, for appellant. The opinion of the court was delivered by DUNBAR, J.-On the 12th day of May, 1888, appellant was adjudged to be insane by the probate court of Spokane county, and the defendant, Paul Strobach, was appointed guardian of his person and estate, and duly qualified. The appellant, at the time, was the owner of certain real estate in the city of Spokane. On the 15th day of June, 1889, on the hearing of the application of said guardian, the real estate was ordered sold, and the proceeds invested for the benefit of appellant. The order of sale was conditioned that the said guardian enter into a good and sufficient bond, with good and sufficient sureties, in the sum of $2,000, conditioned to faithfully execute his trust and sell said real property as required by law; and, there Dec. 1901.] Opinion of the Court-DUNBAR, J. after, on the 21st day of June, 1889, a bond in the sum of $2,000 was executed by the said guardian, as principal, and the respondents Drumheller and Cowley, as sureties, conditioned as required by law, which bond was approved by the probate court, filed in said court, and recorded as required by law. On the 26th day of July, the property was sold by the guardian for $1,850, and no account of the proceeds was ever made by him. Afterwards, upon a petition setting up this fact, it was found that the guardian had in his possession the sum of $1,106.14, which, with the compound interest thereon, amounted to the sum of $2,395.99. On the 24th day of September, 1897, an order was made by the superior court of Spokane county, directing the defendant Paul Strobach to pay the plaintiff the amount which was found due him. This action was begun on the 12th day of December, 1900, against the guardian and sureties, upon the bond executed by him for the sale of said real estate. The guardian defaulted, and respondents demurred to the amended complaint on the ground that the plaintiff had no legal capacity to sue, that the complaint did not state facts sufficient to constitute a cause of action, and that the action was not commenced within the time limited by law, which demurrer was sustained by the court. Appellant electing to stand upon his pleadings, judgment of dismissal was entered, and appeal followed. The question involved in this case is whether or not this case is controlled by the statute of limitations limiting to six years an action upon a contract in writing or liabil ity, express or implied, arising out of a written agreement (§ 4798, Bal. Code), or § 4800, limiting to three years an action upon a contract or liability, express or implied, which is not in writing, and does not arise out of any written instrument. It was decided by this court in Opinion of the Court-DUNBAR, J. [26 Wash. Spokane County v. Prescott, 19 Wash. 418 (53 Pac. 661, 67 Am. St. Rep. 733), that where the duties of an officer are prescribed by statute, and to secure their proper performance, an official bond is given by him, such bond creates no obligation in itself, but merely operates as collateral security for the proper discharge of his official duties; and that an action on the bond on account of a breach of official duty would not be an action on a written contract and would, consequently, be barred under the statutory limitation of three years, upon the commencement of actions upon a contract or liability, express or implied, which is not in writing, and does not arise out of any written instrument. That action was upon the bond of the treasurer of Spokane county. But it is insisted by appellant that the case of Spokane County v. Prescott, supra, is not controlling in the case at bar; that the bond in question here is not the bond which the guardian is required to give when his appointment is made, but a bond for the sale of real estate; that it was not a bond which he was required to give, or that his sureties were compelled to sign, and was not a bond for the performance of any collateral duty by the guardian, but a bond to account for the proceeds of the sale of real estate; that it is in no sense an official bond, but a mere voluntary obligation. We do not think this distinction can be maintained. It was said in Spokane County v. Prescott: "The statute of this state prescribes the duties of the county treasurer. The essence of this action is for the breach of those statutory duties imposed upon the treasurer. His duties under the statute were not contractual. Here, at any rate, is an express obligation imposed, and an express liability for the breach of the obligation." The same may be said of the case at bar. Section 6427, Bal. Code, provides that the guardian shall manage and Dec. 1901.] Opinion of the Court-DUNBAR, J. administer the effects of the insane person to the best advantage according to the law, and that he will faithfully discharge all duties as such guardian which may by law or by the order, sentence or decree of any court of competent jurisdiction devolve upon him. The duty in this instance devolved upon him to sell the real estate of the insane person under the order of the court, and it will not be said that the court making the order was not a court of competent jurisdiction, and had not jurisdiction of the subject matter of the order. It is true that the bond under discussion was not the original bond given by the guardian, but it was a bond given by order of the court. The guardian obeyed the order of the court in this respect, as he was bound to do under the general provisions of the law, or be removed from his office. True, it was not a bond that the sureties were compelled to sign, but sureties are not compelled to sign any bond. It was, however, a bond for the performance of a collateral duty. The collateral duty was the sale of the land which was found by the court to be necessary for the benefit of the estate. Guardians, before entering upon their duties under the law, are compelled to enter into a bond with the state of Washington in such sum and with such security as the court shall approve, conditioned that they will take proper care of such insane person, and manage and administer his effects to the best advantage according to law. It would not do to say that the court upon a contingency arising could not compel a guardian to give an additional bond. Outside of the inherent power that probate courts have over estates of deceased persons, minors and the insane, which powers are treated of in chapter 16, title "Of the Subject Matter Within the Jurisdiction of Probate Courts," American Law of Administration, by Woerner, where it is held that logically the jurisdiction. 36-26 WASH. |