Opinion of the Court-Lewis, C. J. estate, nor can they be held to account therefor. (Stat. 1861, 26, sec. 37; Lyman v. Conkey, 1 Met. 320; Com. v. Gilson, 8 Watts, 214; Beale's Ex. v. Com., 17 Serg. & R. 392.) There must first be an accounting to the probate court before a suit at law can be maintained on the bond. (Stillwell v. Mills, 19 John. 304; Salisbury v. Van Hoesen, 3 Hill, 77.) [*432] *By the Court, LEWIS, C. J.: Coover having been appointed guardian of the plaintiff, gave the general bond as required by the statute, with the defendants Grove Adams and Louis Feusier as sureties. Some time before his appointment, certain real estate belonging to the ward had been sold, in accordance with an order of the probate court, by one James Henderson, who was then the guardian of the plaintiff; but before the conveyance was made or the purchase money paid, Henderson resigned his guardianship, and the defendant Coover [*433] was appointed to succeed him. The purchase money for the property so sold, which amounted to $5,700, was paid to Coover, and the deed of conveyance executed by him. The complaint charges that only $500 of the money thus received has been paid to the plaintiff; that after attaining his majority he demanded an accounting from his guardian, but that no account has been rendered; and, it is alleged, that the sum of $5,200, the balance of the money received from the sale of the real estate, is now held by the defendant Coover. This action is brought upon the guardian's general bond, and judgment asked against the principal and sureties for the sum of $5,200, with costs of suit. After proving the material allegations of his complaint, the plaintiff was nonsuited by the court below, and judgment for costs rendered against him, from which the appeal is taken. In our judgment the nonsuit was properly granted. The action, as we have before mentioned, is upon the general bond of the guardian, and the only material facts proven were the receipt of the purchase money upon the sale of the real estate, and the refusal by Coover to account for it. But the sureties Opinion of the Court-Lewis, C. J. on the general bond of a guardian are not under our law responsible for the failure by the guardian to account for money received from the sale of real estate, or its misapplication by him. To sell the real estate of wards for their benefit is not included in the general duties of guardians, nor have they the right or authority to do so except upon obtaining a license from the proper court authorizing it; and section 32, Stat. of 1861, 260, declares that every guardian "authorized to sell real estate * * * shall, before the sale give bond to the probate judge, with sufficient security, to be approved by such probate judge, with condition to sell the same in the manner prescribed by law for sales of real estate by executors and administrators, and to account for and dispose of the proceeds of the sale in the manner provided by law." In no case whatever can the real estate be sold until this bond is given. When given, the sureties upon it are very clearly responsible for any misap plication of the money acquired by the sale of *such [*434] property, and for the refusal by the guardian to account for it, because to account for such money is the principal condition of the bond, and the statute does not, in direct terms, require a condition in the general bond to account for the proceeds of such sales. It is true, one of the conditions of the general bond is, that the guardian shall pay over and deliver all the estate, moneys, and effects remaining in his hands, or due from him, on his final settlement;" but as that bond seems to be given only to secure the faithful performance of the guardian's general duties, and a special bond is required to be given to secure an accounting for and proper disposition of the money arising from the sale of real estate, it can hardly be supposed that it was intended to make the sureties on the general bond responsible for a misapplication of the money arising from the sale of real estate. With respect to statutory provisions very similar to ours, the supreme court of Maine, in the case of Williams v. Morton, used this language: "It could not have been designed by the legislature that a bond given for the faithful discharge of the duties of guard NEV. DEC.-55 Opinion of the Court-Lewis, C. J. ian, which, by his letters of guardianship he is bound to perform, should be the security for the observance of the provisions of a sale of real estate, and the proper application of the proceeds, when the sale was under authority of a special license only, and a special bond is required that the duties to be done under that license as the law prescribes, shall be faithfully performed. The proceedings under the license, as required by the statute, are not, strictly speaking, guardian duties, but as matter of convenience the change of the real estate of the ward into money is to be done by him who has the charge of the former, and who is to see that the latter is properly secured upon interest.” (38 Maine, 52.) Such, also, appears to have been the view taken of like statutory regulations by the supreme court of Massachusetts. (Lyman v. Conkey, 1 Met. 317.) The stat ute in that State has since been amended, so that at present it is made one of the express conditions of the general bond, that the guardian will render an account on oath of the property in his hands, including the proceeds of all real estate sold by him." (Rev. Stat. Mass. 545.) Since the adoption of this amendment the courts have very ma[*435] terially limited the liabilities of the sureties upon the special bond. (Fay v. Taylor, 11 Met. 529; 11 Cush. 18.) But the general bond required by the statute of this State is substantially like that required by the Massachusetts law prior to the amendment, hence the case of Lyman v. Conkey appears to sustain our views. As it was shown by the plaintiff's proof that the money for which Coover has not accounted was the price of real estate sold, and that the defendants Adams and Feuiser were suretics on the general bond only, the plaintiff was properly nonsuited. JOHNSON, J., did not participate in the foregoing decision. Opinion of the Court-Lewis, C. J. WILLIAM D. KEYSER, APPELLANT, v. ELIZA TAYLOR ET AL., RESPONDENTS. [4 Nevada, 435.] No APPEAL FROM ORDER SUSTAINING A DEMURRER.-An appeal does not lie from the action of a district court in simply sustaining a demurrer; there must be a final judgment in such case before an appeal can be taken. DISMISSAL OF APPEAL.-Where the record on appeal discloses simply the sustaining of a demurrer, without showing a judgment, the appeal will be dismissed. APPEAL from the District Court of the Second Judicial District, Douglass County. *The notice of appeal was "from the ruling order, [*436] and judgment," etc., "sustaining the demurrer," etc. The order and exceptions thereto were contained in the transcript, but no final judgment, or anything to show that one had ever been rendered. Doyle and Tebbs, for Appellant. Robert M. Clarke, for Respondents. By the Court LEWIS, C. J: No judgment appears to have been rendered by the court below in this action. The record shows that the demurrer to the complaint was sustained, but whether judgment was rendered against the plaintiff, or whether he was allowed to amend his pleading does not appear. The statute does not authorize an appeal from the action of the court simply sustaining a demurrer. There must in such case be a final judgment before an appeal can be taken. (Practice Act, sec. 285. Moulton v. Ellmaker, 30 Cal. 527.) Appeal dismissed. Points decided. BELLE C. NEIL, RESPONDENT, v. JOHN M. DANIEL, [4 NEVADA, 436.] FAILURE OF TRANSCRIPT TO SHOW DESPOSITION OF MOTION FOR NEW TRIAL. Where a transcript on appeal does not show that the motion for a new trial was ever submitted to, or passed upou by, the court below, the judg ment roll only will be looked into; and if no error appears in it, the judgment will be affirmed. APPEAL from the District Court of the First Judicial District, Storey County. [*437] *J. S. Pitzer and Aldrich & DeLong, for Appellant. Henry K. Mitchell, for Respondent. By the Court, WHITMAN, J.: The transcript in this case does not show that the motion for a new trial was ever submitted to, or passed upon by the district court. The appeal must therefore be decided upon the judgment roll. In that no error appears. Upon the agreed statement contained in the transcript we should come to the same conclusion. The judgment of the district court is affirmed. J. P. FLANNERY, RESPONDENT, v. JAMES ANDERSON ET AL., APPELLANTS. 14 NEVADA, 437.] ACTION AGAINST JOINT DEBTORS, WHERE ONE ONLY SERVED.-Section 32 of the practice act authorizes a judgment, when summons and complaint have been served on one of the joint debtors, to be entered against all the defendants jointly indebted and to be enforced against the joint property of both, and the separate property of the defendant served. PLEADING BY ONE OF SEVERAL JOINT DEBTORS.--Section 32 of the practice act does not require, nor does it seem to authorize, one of several joint debtors, upon whom only service is made, to appear or answer for his co-defendants who are not served; but service upon any one alone is sufficient to warrant a judgment against the joint property. JUDGMENT BY CONFESSION OF JOINT DEBTOR.-A judgment by confession of |