
    [File No. 6114.]
    GEORGE D. KELSEY, Public Administrator of Barnes County, North Dakota, Administrator of the Estate of Gustav Clausen, Deceased, Respondent, v. S. A. OLSNESS, Commissioner of Insurance of the State of North Dakota, Doing Business as the State Bonding Fund, and E. N. Johnson, Administrator of the Estate of R. T. Healy, Deceased. S. A. OLSNESS, Commissioner of Insurance of the State of North Dakota, Doing Business as the State Bonding Fund, Appellant.
    (249 N. W. 919.)
    
      Opinion filed August 10, 1933.
    
      James Morris, Attorney General, and Charles Simon, Assistant Attorney General, for appellant.
    
      A. F. Greffenius, for respondent.
   Nuessle, Ch. J.

This action was brought to recover on a public administrator’s bond issued by the State Bonding Fund.

R. T. Healy was the duly elected and qualified public administrator of Barnes county from January 5, 1925, to March 18, 1931, the time of his death. As such public administrator he was bonded by bonds Nos. 10633 and 20017, issued by S. A. Olsness, Commissioner of Insurance, ex officio commissioner and manager of the State Bonding Fund pursuant to the provisions of article 10 of chapter 4 of the Political Code, being §§ 190 et seq., Comp. Laws 1913, and §§ 200bl to 200b22, 1925 Supplement to the 1913 Compiled Laws. On March 18, 1931, 'Ilealy died. On May 15, 1931, the plaintiff Kelsey was appointed to fill the resulting vacancy. On November 23, 1925, Ilealy, as public administrator of Barnes county, was appointed administrator of the estate of Gustav Clausen, deceased. He duly qualified and acted as administrator of this estate until the time of his death. During the period of his administration he received certain funds belonging to the estate of the said Clausen and, 'at the time of his death, there remained in his possession as such administrator the sum of $1339.79. Clausen’s heirs were residents of Norway. They designated I. A. Berg, of Grand Forks, a Norwegian vice consul, as their attorney in fact to look after their interests in the Clausen estate. In this behalf Berg retained A. F. Greffenius, an attorney of Valley City. Pursuant to this retainer, Greffenius acted as counsel for Healy in the administration of the Clausen estate. Healy died intestate. In April, 1931, Greffenius became concerned about the property of the Clausen estate which Ilealy had received as administrator. Accordingly he wrote the State Bonding Fund department indicating that there might be a shortage. On June 26, 1931, Kelsey'was appointed as administrator of the Clausen estate and thereafter duly qualified. On June 9, 1931, one-E. N. Johnson was appointed as administrator' of the estate of Healy and duly qualified. On July 25, Kelsey, as administrator of the Clausen estate, made demand upon Johnson as administrator of the Healy estate for an accounting of the Healy administration of the Clausen estate and for the property belonging to such estate that Healy had in his. possession at the time of his death. This demand was refused by Johnson on the ground that there was no property in the Healy estate other than certain personal property which was exempt to his widow. Thereupon, Kelsey, as administrator, made demand upon the State-Bonding Fund on account of Flealy’s default in the administration of the Clausen estate. Kelsey’s contention was that the bonding fund was liable on the bonds issued to Healy as public administrator. His demand was refused on the ground it had not been made within sixty days after the discovery of the default as required by the statute, §§ 200b7, 1925 Supplement. Thereupon this action was begun.

The case was tried to the court without a jury. It was stipulated that if the plaintiff was entitled to recover, the amount of such recovery was $1339.19, the value of the personal property for which Healy had failed to account. The contentions advanced by the defendant in the district court and on which he relies on this appeal, are that the plaintiff could not recover in this action: (1) Because he had no authority to bring the action for' the reason that the bond on which a recovery was sought was issued to Healy as a public officer; the premium was paid out of public funds; and only the proper officers of Barnes County, to-wit, the county auditor or the county judge were authorized under the statute to file claims against the bonding fund and to bring action to recover on account of Healy’s default. (2) That the-claim filed with the State Bonding Fund had not been filed within sixty days after the discovery of the default of Healy as required by § 200b7 of the Supplement.

The trial court overruled the contentions of the defendant in these several respects; found that the claim had been filed within time and ordered judgment for the plaintiff. Judgment was entered accordingly arid the defendant Olsness perfected the instant appeal.

On this appeal the defendant relies upon the grounds' urged in the trial court and stated above.

Healy, being public administrator, was appointed general administrator of tbe Clausen estate pursuant to tbe provisions of §§ 3442 and 3443, Comp. Laws 1913. His bond as public administrator became effective for bina as general administrator under tbis appointment, see § 3443, supra, and was holden for bis defaults as general administrator. 1925 Supp. § 200b7. Tbe defendant urges tbat tbis is not so because it does not affirmatively appear tbat Healy was not ex officio administrator as public administrator. We think, however, tbat tbe letters of general administration issued by tbe county court of Barnes county and under which be purported to act, are sufficient to establish tbis fact in tbe absence of proofs to tbe contrary, and there are none. What we have said above likewise applies with respect to tbe designation of Kelsey as administrator. Accordingly, Kelsey, as tbe representative of the heirs of Clausen, is entitled to the possession of tbe property belonging to tbe estate. Comp. Laws 1913, § 8707. He represents those who were injured by tbe default of Healy. Tbe injury was a private and not a public injury. Accordingly, as administrator, be bad tbe right to vindicate tbe injury done by Healy and could make demand upon tbe bonding fund and bring action to enforce it upon compliance with tbe requisite statutory conditions. See §§ 200b7 and 200bl0, 1925 Supplement, and §§ 8798, 8801, 8802, and 8805, Comp. Laws 1913.

I-Iealy died on March 18. Kelsey was appointed public administrator on May 15th. He was appointed and qualified as administrator of tbe Clausen estate on July 1st. It affirmatively appears tbat as public administrator be had no knowledge of any default of Healy. He may have bad the means of knowing tbat Healy as administrator of tbe estate bad received certain property belonging to it, but there was nothing which apprised Kelsey tbat Healy’s representatives could not and would not account for tbis property. Thus be did not know until on July 25, when be made demand for it upon Johnson, who bad been appointed as administrator of tbe Healy estate. And when tbis demand was refused be immediately filed a claim against tbe bonding fund. Greffenius was tbe attorney for tbe representative of tbe Clausen heirs. He bad some suspicion tbat Healy bad defaulted, but be was not in a position to file a proper claim against tbe bonding fund, Tbe heirs were residents of Norway. They knew nothing about tbe matter. Neither did Berg tbeir attorney in fact. There was no one with knowledge who could do this until Kelsey had .qualified as administrator. Accordingly, the filing of the claim was within the statutory period of sixty days after the discovery of Healy’s. default.

The trial court’s ruling and finding were right and the judgment is affirmed.

CheistiaNSON, Burr, Birdzell and Burke, JJ., concur.  