of the probate court, made August 15, 1876, in a certain other proceeding commenced by the guardian to sell the real estate of his ward; that in the proceeding a special bond in the sum of $17,000 was required by the court, and executed by the guardian according to law, with Ransom Kennedy and G. W. Storm as his sureties, which bond was duly accepted and approved by the probate court.

And, further answering, the defendants say that said sum hus derived from the sale of real estate, and the rents and profits, was and is the only assets and property of said ward which came into the hands of Albert B. Northrop during the whole period of his guardianship; and that the entire sum of $9,443.44, found due from and ordered by the probate court to be paid by Northrop, as such guardian, in 1879, in March, and the entire balance of $2,503.11, sued for in this action, is made up and composed wholly of the proceeds of the sale of real estate. It is admitted that the sum of $7,365.28 was paid over to the plaintiff by Northrop, and that there is still due and unpaid to plaintiff, as guardian of Emily Belden, from Northrop, the sum of $2,503. And the defendants say that the bond in suit, signed by them, was signed and executed by them as the sureties of Albert B. Northrop, who was and is the principal therein; that the bond is a general and not a special bond, and covers and contemplates only a breach and violation of the general duties of such guardian, and not any of the special duties by law imposed upon him on the sale of real estate, and covers and contemplates only a failure of such guardian to perform his duties and pay over moneys derived from the sale of personal estate and rents and profits which came into his hands, and does not contemplate or embrace any failure to pay over moneys derived from the sale of real estate, or any breach of his duty in that behalf; but that the remedy of said plaintiff guardian, if any, is upon the bonds severally executed in the proceedings to sell the real estate of said ward, by Northrop, as her guardian.

Demurrers to these answers were overruled by the court of common pleas, and judgment for costs was rendered for Tice and Taylor. On proceedings in error, the district court reserved the same for decision here.

P. Bosworth and W. D. Pudney, for plaintiff in error.

Alvord & Alvord and Morrow & Morrow, for defendants in error.

FOLLETT, J. Are Tice and Taylor liable on this bond for the $2,503.11, and interest, due from Northrop to his ward? The amount due is not disputed. It is admitted to be a part of the proceeds of real estate sold by order of court; but from which sale the guardian obtained this amount due we are not told. The sureties do say that there came into Northrop's hands, as guardian, on August 17, 1876, the sum of $8,500 in cash. This was from the last sale of land. He may have received thereafter some small sums of money for rent. This bond was given October 13, 1877, and after the property had been changed from realty to personalty. There is no statute of Ohio that requires such proceeds to be regarded as realty for any purpose.

In case of sale by an executor or an administrator to pay debts, section 6171, Rev. St., requires "the surplus of the proceeds of the sale remaining on the final settlement of the account shall be considered as real es tate, and shall be disposed of accordingly." And, though this surplus goes to the heirs in the line that real estate would go, such proceeds are

personalty, and are held as personalty by the heir, and as such pass from such heir. See Pence v. Pence, 11 Ohio St. 290, and Oxenden v. Compton, 2 Ves. Jr. 69.

On his final settlement, Northrop must have had, "in his hands" at least the $7,365.28 which the sureties admit he paid to his successor; and, as this payment was made on the entire amount due, it may be applied, in the interests of the beneficiary, to the payment of any amount not in his hands at settlement. So this residue sued for was received by Northrop in cash, and so remained in his hands on giving this bond and on his settlement. Sureties are held by the terms of the bond. These sureties bound themselves in the sum of $8,000, with the condition: "Now, if the said A. B. Northrop shall faithfully discharge all of his duties as such guardian, as is required by law, then the above obligation to be void; otherwise to remain in full force."

Among other things it "is required, by law," (sections 6269, 6304, Rev. St.,) of the guardian that "at the expiration of his trust, fully to account for and pay over to the proper person all of the estate of his ward remaining in his hands." This language is very comprehensive, and includes whatever may be a part of an estate, whether derived from personalty or realty. Whatever is the nature or source of any part of the estate, the guardian is not required to keep separate accounts, but he is required to render "an account of the receipts and expenditures of such guardian," one account of all receipts and all paid out.

We have been referred to the decisions of courts in other states; but their laws and decisions cannot control our statutes. In some states, as in Massachusetts, the statutes have been changed so as to require in a guardian's general bond the specific condition, "to render an account of the proceeds of all real estate sold by him for investment, and, at the expiration of his trust, pay the same over," etc. The bond in this case includes all such proceeds.

There is no question before us that involves the extent of the liability secured by each special bond, or what, if any, security such special bonds afford the ward or the general bondsmen. And this case does not involve the proceeds of land sold after the general bond was given. The ward or the present guardian cannot know the amount due until the former guardian has settled his accounts. This court has held, in Newton v. Hammond, 38 Ohio St. 430, "A right of action on a guardian's bond to recover from the sureties the amount remaining in the hands of the guardian first accrues to the ward when such amount is ascertained by the probate court on the settlement of the guardian's final account." The plaintiff delayed suit until the amount due was so ascertained. There is no claim that any one asked that other bondsmen should be made parties to the suit. Tice and Taylor are liable on this bond to the plaintiff for the amount unpaid.

The court erred in overruling plaintiff's demurrer to the first defense in the answer of Taylor, and the demurrer to the first and second defenses in the answer of Tice. The judgment is reversed, and the case is remanded, with instructions to sustain these demurrers, and for further proceedings.

(105 Ind. 517)

SUPREME COURT OF INDIANA.

BASS and others v. ELLIOTT, Adm'r, etc., and others.

Filed March 5, 1886.

CHANGE OF VENUE FROM JUDGE - PROVISIONS OF CODE APPLI

The provisions of the Civil Code in relation to a change of venue from the judge are applicable to drainage proceedings, and a change may be taken in proper cases.

2. SAME-SPECIAL FINDING-FACTS NECESSARY TO BE FOUND.

Where a remonstrance has been filed against the establishment of a ditch or drain, and the court, having been requested to make a special finding, fails to find that "the public health will be improved, or that one or more public highways of the county or street or streets of a town or city will be benefited by the proposed drainage, or that the proposed work will be of public utility,' the construction of the ditch should not be ordered.

Appeal from Shelby circuit court.

O. J. Glessner and D. L.' Wilson, for appellants.

Adams & Michener and Adams & Hackney, for appellees.

Howk, J. On the twenty-fifth day of April, 1883, appellants, Bass and Gordon, filed their petition in the clerk's office of the Shelby circuit court, praying therein for the location and construction of a certain ditch or drain in Shelby county. Thereafter, on May 21, 1883, proof was made by appellants, to the satisfaction of the court, that notice had been given of the filing of such petition, in the manner required by section 2 of the amendatory draining act of March 8, 1883, more than 20 days before the day noted on the petition, and set as the day for the docketing thereof. Acts 1883, p. 174. Thereupon it was ordered and adjudged that the matter of such petition be entered on the dockets of the court as an action pending therein. On May 26, 1883, more than three days having elapsed after the docketing of such petition, and no demurrer, remonstrance, or objection having been filed either to the form of the petition or to any of the commissioners of drainage, and the petition appearing to be sufficient, it was ordered and adjudged by the court that such petition be referred to the commissioners of drainage of Shelby county, who were required to meet on a day and at a place named in such order, and to make a report of their proceedings in such matter to the court on June 16, 1883. Afterwards, on June 18, 1883, the commissioners of drainage filed, in open court, their report, verified by affidavit; and on the same day the appellees appeared and filed their remonstrances against such report. Afterwards, on October 8, 1883, the commissioners of drainage filed what is called "their amendment to their original report herein" and their affidavit annexed thereto. On the same day, appellees filed their written motion to strike from the files of this cause such amendment of the original report of the commissioners of drainage, for certain specified reasons. Afterwards, on October 11, 1883, upon affidavit filed, appellees' motion for a change of venue from

After

the judge, or a change of judge, was sustained by the court. wards, on March 11, 1884, before the Honorable THOMAS W. WOOLLEN, who had been duly appointed and qualified as judge pro tempore of the court below for the trial of this cause, appellees' motion to strike from the files the amendment to the original report of the commissioners of drainage was sustained by the court. The cause was tried by the court, and, at appellants' request, the court made a special finding of facts, and thereon stated, as its conclusion of law, "that the ditch proposed is not of public utility, and, the board of commissioners having taken jurisdiction thereof, this court will not interfere by ordering the construction of the ditch asked for in this cause." Over appellants' exceptions to its conclusion of law, the court rendered judgment for the dismissal of the cause, and that appellees recover of appellants their costs.

The first error complained of here by appellants' counsel, in their brief of this cause, is the sustaining of appellees' motion for a change of venue from the judge, or a change of judge. It is claimed by counsel that a cause such as this is not a civil action, but a special proceeding under the statute concerning drainage; and, as that statute contains no provision for a change of venue from the judge, or a change of judge, counsel contend, with some force and plausibility, that the court erred in sustaining the motion for a change of judge. But, under the recent decisions of this court, the contention of appellants' counsel is untenable, and cannot be sustained. Thus, in Neff v. Reed, 98 Ind. 341, it was held, substantially, that a proceeding for the location and construction of a ditch or drain, under the statute concerning drainage, was so far a civil action that the provisions of the Civil Code, in relation to a motion for a new trial, were allowable and applicable to such proceeding. So, also, in Crume v. Wilson, 104 Ind., S. C. 4 N. E. Rep. 169, the court said: "We are of opinion that, in drainage cases, the modes of procedure and the rules of practice prescribed by our Civil Code may properly be used to supply omissions in the drainage statutes." Accordingly, it was there held that, although there is no provision of our drainage statutes which authorizes the petitioner for a drain to dismiss his cause at any time, of his own motion, yet the provisions of section 333, Rev. St. 1881, in relation to the dismissal of a civil action by the plaintiff, were applicable to drainage cases, and the petitioner for a drain might thereunder, at the proper time, dismiss his petition.

Applying the doctrine of the cases cited to the case in hand, we have no difficulty in reaching the conclusion that a proceeding for the location and construction of a ditch or drain, under our drainage statutes, is so far a civil action that the provisions of sections 412-417, Rev. St. 1881, in relation to a change of venue from the judge, or, more aptly speaking, a change of judge, must be held applicable to such a case as the one under consideration. Our conclusion is, therefore, that the court did not err in sustaining appellees' motion for a change of judge. See, also, as bearing upon the question we have been considering, the recent cases of Burkett v. Holeman, 104 Ind. —; S. C. 3 N. E. Rep. 406; Powell v. Powell, 104 Ind. --; S. C. 3 N. E. Rep. 639; Burkett v. Bowen, 104 Ind.

--; S. C. 3 N. E. Rep. 768; Evans v. Evans, ante, 24, (at the present term.)

The alleged error of the court, in its conclusion of law upon the facts specially found, is the only other error of which appellants' counsel complain here, in argument. The facts found by the court were, in substance, as follows: On the twelfth day of February, 1881, proceedings were instituted before the board of commissioners of Shelby county, to which proceedings appellants were parties, to establish a ditch beginning about 1,500 feet west of the beginning of the proposed ditch in this cause, on the lands of Alfred Fox, and such proceedings were had that such ditch was located, and the report of the viewers, making the assessments and allotments, was filed in the auditor's office of such county, on October 15, 1881. Such report was approved and acted on by the county board, and the allotments therein made to parties along the line of the ditch were to be completed by such parties by November 20, 1881, which was the time for the completion of such ditch as provided by the viewers' report, and none of the ditch was then completed, although several of the parties had begun the construction thereof. Afterwards, on December 9, 1882, and more than one year after the time of completion, as provided by the viewers' report, the several allotments were, by the auditor of such county, under the statute, sold out; and the parts heretofore allotted to the parties, appellants and appellees herein, were bought in by them, respectively, and a bond executed by each, with approved security, payable to the state of Indiana, conditioned that such work and allotments would be completed by January 10, 1883. Under such sales and allotments, parts of such ditch have been completed and received by the engineer appointed by the county board to superintend such work; the part completed being about onethird of the line of the ditch being constructed by the county board; and all of such ditch has had some work done thereon, under such proceedings. It was also found by the court that the pending ditch proceeding was commenced after the time had elapsed for the completion of the work under such sales by the county auditor, but before such completion, to-wit, on April 25, 1883, that the ditch therein proposed would begin about 1,500 feet east of the one then under construction by the county board, and would run directly the entire 1,500 feet to the head of the latter ditch, and would thence follow nearly the course of such ditch, and would be of about the same character and capacity, and its terminus would be different, though not varying materially, from the terminus of such ditch; that the ditch being constructed by the county. board will, if completed, be of sufficient capacity to drain all the lands that would be drained by the ditch proposed in this cause, except that part east of the beginning of the former ditch, and that that part can as well be drained without interfering with the construction of the first ditch by the county board.

The foregoing is a full statement of the facts specially found by the trial court. Whatever else may be said of those facts, we are clearly of the opinion that, upon the facts found, there can be no other or different