Cochrane v. Miller

Ogden, J. The defendant iras sued as security in a tutor’s bond. Ho suffered a judgment by default to be taken against him, which was subsequently confirmed on proof of tho plaintiff’s demand, without any appearance on tho part of the defendant, who now prosecutes his appeal therefrom. Tho suit was brought in tho names of Joshua, Leah and Harriet Oochrame, as the only surviving' children and heirs of Edioard Cochrane, deceased. The principal in tho bond, Andrew D. Bonqua, had boon appointed tutor not only to the plaintiffs, but to two of their sisters, named Margaret and Fancy, and to a brother named John. The petition alleges that Margaret, Fancy and John died without issue, and that the plaintiffs are their sole heirs. Tho appellant asks a reversal of tho judgment on several grounds : 1st. That there is no proof in the record that tho plaintiff Harriet, who sued as a married woman, had been authorized by her husband or by tho court to bring this suit. 2ndi That there is no proof to establish tho death of the two sisters, 31ar-garet and Fancy. 3d. That the death of tho mother of the plaintiffs, between whom and their father there must have been a community of goods, was not proved, and that by law she is presumed to be still alive and to be entitled to one-half tho property which was administered by tho tutor. 4th. That no steps had boon taken to enforce payment against the principal, which, by the Act of tho Legislature of 1842, is made a prerequisite to any action against tho surety. Tho effect of tho judgment by default is to create a tacit joinder of issue, and the reason given for it in Art. 300 of tho Code of Practice is, that tho defendant is presumed by his silence to have confessed the justice of his adversary’s demand. Although it is, notwithstanding such presumption, made necossaiy for tho plaintiff' to proceed with his proofs, in order to have the judgment confirmed, tho defendant cannot be permitted to take advantage of any matters of exception or defence which ho would have been bound to plead specially, if he had thought proper to make an appearance in the cause. No dilatory exceptions can bo pleaded after a judgment by default is rendered, and a special denial is necessary to put a party upon proof of the representative capacity in which ho sues. It follows that the defendant cannot have the benefit of such pleas, when no appearance has been made for him in the court below. Art. O. P. 320, 321. Reynolds v. Reynolds, 12 L. R. 618. Lopez, et al. v. Berghel, 7 L. R. 181. Tho tutor took possession of all the property as belonging to the succession of tho father of the plaintiffs and tho defendant, without a special plea to that effect, and proof to support it, cannot now contend that a part of it belonged [141] to the mother, and that she is still alive. The defence set up that no steps had been taken as required by the Act of tho Legislature of 18-12, to enforce payment against the principal, ought also to have been specially pleaded. The Judgment was rendered in favor of Joshua, Leah and Margaret Coch-rane. The name of Margaret, who is dead, was erroneously inserted in the judgment for that of Harriet, one of the plaintiffs. The appellee’s counsel has asked for an amendment of the judgment to correct that error, but it is not one of those cases in which the appellee has a right to an amendment of the judgment at the costs of the appellant. It is therefore ordered, adjudged and decreed, that the judgment of the court below be amended by inserting the name of tho plaintiff, Harriet Coch-rane, in the place of that of Margaret, and thus amended the judgment be affirmed, and that the costs of the appeal be paid by tho plaintiffs and ap-pellees.