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THE MISSISSIPPI BANK v. STEVE RANDALL KELLY

FEBRUARY 22, 1984

THE MISSISSIPPI BANK
v.
STEVE RANDALL KELLY, JR., A MINOR, BY AND THROUGH HIS GUARDIAN, REBECCA ANN S. KELLY



BEFORE WALKER, P.J., ROY NOBLE LEE AND BOWLING

WALKER, PRESIDING JUSTICE, FOR THE COURT:

This is an appeal from the chancery court of the First Judicial District of Hinds County, wherein the chancellor held the appellant in contempt and ordered it to pay unto the appellees the sum of $8,150.00 to purge itself of said contempt. From this order the appellant perfected an appeal to this Court and assigns as error, inter alia, the following:

The Mississippi Bank was never made a party to the court decree under which it was found to be in contempt of court.

 On May 24, 1974 Steve Randall Kelly, Sr. petitioned the chancery court for a decree appointing him as general guardian of the estate of Steve Randall Kelly, Jr. The petition listed the sole asset of the estate as an unliquidated claim for damages arising out of injuries sustained as a result of an overdose of Demerol while a patient at Hinds General Hospital. The decree was granted and letters of guardianship were issued on May 30, 1974. A requirement of the decree was that the petitioner obtain a $50,000.00 guardian's bond.

 Thereafter, Steve Randall Kelly, Sr., the guardian, petitioned the court for authority to compromise the unliquidated claim. Authority was granted and the claim was settled for $100,000.00. On May 30, 1974 the money was

 deposited in the Mississippi Bank in accounts styled "Steve R. Kelly, Sr., guardian of S. R. Kelly, Jr." Authorized signatures were Steve R. Kelly, Sr. and William Selph, Mr. Kelly's attorney.

 On August 22, 1975, over a year later, Steve R. Kelly, Sr. filed in chancery court a petition for waiver of the guardian's bond. That same day the chancellor entered a decree waiving the bond. The decree further provided "that the entire assets of the minor's estate remain in Mississippi Bank and Trust Company in certificate of deposit 437 and Golden Savings Account 225-9500-3 and savings account #125-9860-3 until such further order of this court shall be entered from time to time, and that no disbursements or withdrawals be permitted except upon direct order of this court." A certified copy of this order was delivered to The Mississippi Bank by Mr. Kelly's attorney.

 Between December 24, 1980 and May 15, 1981 Steve R. Kelly, Sr. made withdrawals totalling $8,150.00 from two of these accounts. None of the withdrawals were authorized by the chancery court.

 On August 7, 1981 Rebecca Ann S. Kelly petitioned the court for appointment as general guardian of the estate of Steve Randall Kelly, Jr. Her petition recited the fact that Steve R. Kelly, Sr., the former guardian, had since deceased. The chancellor then entered a decree appointing Mrs. Kelly as guardian.

 Mrs. Kelly then filed a motion for citation for contempt against The Mississippi Bank. In her motion she alleged that The Mississippi Bank violated the August 22, 1975 court order when it allowed the former guardian, Steve R. Kelly, Sr. to make withdrawals without a court order. At a hearing on the motion both parties stipulated to the facts set forth above. The Bank, however, denied that it violated any court order in allowing the withdrawals.

 After the hearing the chancellor found that the Bank had violated the court order in allowing Steve R. Kelly, Sr. to make the withdrawals. The chancellor then held The Mississippi Bank in contempt and ordered it to repay the funds wrongfully withdrawn in order to purge itself of said contempt.

 On appeal the Bank urges reversal, contending first that it was never made a party to the court decree under which it was found to be in contempt for having allegedly violated.

 The chancellor's decree waiving the guardian's bond and requiring that the funds not be withdrawn from the Bank without a court order was made pursuant to Mississippi Code Annotated section 93-13-17 (Supp. 1983), which provides in pertinent part:

 A guardian need not enter into bond, however, as to such part of the assets of the ward's estate as may, pursuant to an order of the court in its discretion, be deposited in any banking corporation, building and loan association or savings and loan association in this state so long as such deposits are fully insured, such deposits there to remain until the further order of the court, and a ...


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