Reynolds' Tutor v. Reynolds' Administrator

Carleton, J., delivered the opinion of the court. The plaintiff, who is the natural tutor of his minor child, has instituted this action to compel the defendant to render an account of his administration, of the succession of the mother of the said minor, and to deliver up a slave with certain promissory notes, which it is alleged he illegally withholds. Service of the petition was acknowledged on the 25th June, 1836, and on the 12th of December thereafter, the judge gave an order, requiring the administrator to render his account on the 1st of January, 1837. There was a judgment by default, and another order to account in March, 1837; and in April, 1837, a judgment requiring the defendant to deliver up the slave and notes mentioned in the petition. The defendant then filed his answer and account, and on the 6th of June, 1837, the court rendered another judgment, homologating his account, and the defendant appealed. It appears that after the rendition of the judgment by default, the defendant moved for a new trial, principally on two grounds, which are now again insisted upon before this court, as cause for the reversal of the judgment below. 1st. There is no evidence that John A. Reynolds is tutor of the minor. 2nd. That there was no citation served upon the defendant. We think both of these objections altogether untenable. A judgment by default is equivalent to issue joined, after which it is too late to take exception to the capacity of the plaintiff to sue, and the defendant having acknowledged [619] service of the petition, is surety a waiver of service of citation, or it can have no meaning at all; moreover, the defendant filed his answer to the merits, and rendeied his accounts without insisting on either of the exceptions here taken. ■ ° We do not perceive any error in the judgment of the. court below, and think it ought to be affirmed. It is, therefore, ordered, adjudged and decreed, that the judgment of the Court of Probates be affirmed, with costs, .