State Ex Rel. Cox v. Peebles

Bovden, J. This case comes before this Court from a decision of his Honor below, upon his refusal to allow exceptions to the report of tlm commissioner to be filed at the term of the Court subsequent to that at which the*report was made. In the argument, it was said by the couusel for the defendant, that the record did not show that the report was fifed at the November Term, 1871. This is a mistake,, as the record does show this distinctly, as it states that the case was referred to the Commissioner at Spring Term, 1871, with directions to repeat to the Fall Term of the Court, and the Commissioner makes Report at the Pall Term, and states that he makes it in obedience to the order of the Court which directed him to take the account and to report to that term. It is the well settled rule that exceptions to such reports must be made, as a matter of right, at the Court to which the Report *99 is ma.de, and after that it is a matter oí discretion with the Court, whether such exceptions will be allowed or not. Indeed, upon, motion to that effect, the plaintiffs in such cases are entitled, at the term to which the report is made, not only to have the report confirmed, hut likewise to have judgment at the same term. It was urged"by the defendants, that as there was no evidence reported, that was error. This is a mistake, and an objection on that account must be taken by exception; and this seems to have been well understood by the defendants, as that was one ot the exceptions proposed to be filed. Much liberality has usually been shown to parties by the Court, in allowing them to except at a term subsequent to that at which the report was made, and his Honor, had he seen fit, might have allowed the defendants to file their exceptions, as proposed, but, for reasons satisfactory to him, he’declined, and his decision, being a matter of discretion, is not the subject of review by this Court. It is insisted here that the judgment is erroneous, for the reason that it is conditional, and, therefore, it should be set aside. It will he recollected that this case is to be regarded and governed by the same rules, with respect to this report, and the j udgment thereon, as if it was a suit in equity. It is a little remarkable that the defendants should complain of this part oí the judgment, as it relieves, them from the immediate payment of some three thousand dollars for which the plaintiffs, would otherwise have then been entitled to an absolute, judgment against all the defendants. This very credit allowed is especially asked for in the answer oí the defendants. How can it be pretended that the sureties are entitled to, these credits, unless upon the terms mentioned in the judgment. It is further insisted, on the part of defendants, that the action is improperly brought. This is a civil action under the C. C. P., which is governed by different rules from those under our former system. In the *100 caption it is stated to be upon the relation oí ¥m. R. Cox, Solicitor, when it is insisted it should have been in the name of the wards. No objection was taken in the answer, or upon the rendition oí the judgment, as to the form of the action. Had it been then taken, his Honor would have allowed an amendment, had he deemed it necessary. So, that it will be seen, that this objection comes too late, should we hold the suit improperly instituted. But the Court is of opinion that the action is properly brought, as the complaint shows that, notwithstanding the caption, it is really in the name of the wards against their late guardian and his sureties, on the guardian bond. There is no error. This will be certified. Per Curiam. Judgment affirmed.