ESTATE OF SCHULTZ
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No. 85-66 IN THE SUPREME COURT OF THE STATE OF MONTANA 1985 IN THE MATTER OF THE ESTATE AND GUARDIANSHIP OF FRANK R. SCHULTZ, JP.., a minor. APPEAL FROM: District Court of the Second Judicial District, In and for the County of Silver Bow, The Honorable Mark P. Sullivan, Judge presiding. COUNSEL OF RECORD: For Appellant: Eooks & Budewitz, Townsend, Montana For Respondent: Daniel R. Sweeney, Butte, Montana Submitted on briefs: J u l y 25, 1 9 8 5 Decided: September 26, 1985 Filed: 3f.p: Clerk Mr. Justice John C. Court. Sheehy delivered the Opinion of the Frank Shultz, Jr. appeals from an order of the District Court, Second Judicial District, Silver Bow County, granting summary judgment to respondent Frank Shultz, Sr. We remand to the District Court. This is an action to set aside t.he Decree of Settlement and First and Final Account and to compel the guardian to make a correct accounting. In 1969, Frank Shultz, Jr., then 17 years old, was injured in an automobile accident. Suit was brdught on his hehalf against the driver of the car in which he was a passenger. The suit was settled for $25,000. On December 8, 1970, the District Court appointed Frank, Sr. as guardian of his son, Frank, Jr. On P l r h 30, 1973, the iac father filed his First and Final Account. The account showed $24,900 had been received in settlement of the claim and a balance of .43 remained. or receipts. The account contained no vouchers The matter was set for hearing before the District Court on April 24, 1973. The son, who was then 21, was not personally notified of the hearing. posted in three places in Silver Bow County. the District Court entered a decree of Notice was At the hearing, settlement and discharged the father from further duties as guardian. On July 26, 1976, the son hired counsel to investigate the whereabouts of the guardianship funds. 1976, Frank, Jr. occasional On September 9, joined the Marine Corps and except for leaves, he was out of the state until 1981. Gradually, the son became dissatisfied with the efforts of his counsel to obtain relief, and in October 1979 while on leave in Montana, he hired a different attorney. The new attorney filed a petition to set aside the decree of settlement of the First and Final Account and to compel the guardian to make a correct and complete accounting on February 8, 1980. The District Court granted summary judgment for Frank Shultz, Sr. on the basis that the petition was not filed within the two-year statute of limitations for actions based on fra.ud. Section 27-2-203, MCA states: The period prescribed for the commencement of an action for relief on the ground of fraud or mistake is within 2 years, the cause of action in such case not to be d-eemed to have accrued until the discovery hy the aggrieved party of the facts constituting the fraud or mistake. The District Court held the son became aware of the fraud either in 1976 when he retained legal counsel or in L977 when he received a copy of the status of the account, thus he had until 1978 or 1.959 to commence proceedings. H o w ~ T T the , District Court did not take into account ~~ the effect of the Soldiers' and Sailors' Civil Relief Act of 1940, 50 U.S.C. ยง 525 (1982). It states: The period of military service shall not be included in computing any period now or hereafter for the bringing of to be limited by any law a.ny action or proceeding in any court . by or against any person in military service whether such cause of action or the right or privilege to institute such action or proceeding shall have accrued prior to or during the period of such service.. ... . . ... .. It appears that September 9, 1976. the service. Frank, Jr. joined the service on The record. does not disclose when he left We remand this case to the District Court for reconsideration in light of the Soldiers' and Sailors' Civil Relief Act of 1940, 50 U.S.C. S 525 (1982). <"--.-.--i ; #& '* , i 42, JAl.dbv Justice W e Concur: 84/ 1 C h i e f Justice
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