1. We contend that there is no error apparent on the record. The decision in the case of Ellissen v. Folsom's Executors is not an authority decisive of the question presented by this appeal. The decision there was on a demurrer to the complaint, in consequence of the omission of any averment of presentment of the demand to the executor.
In the present case, the defendants have allowed judgment to be taken against them, without objection, which they now seek to set aside, because it does not expressly appear thereon that the note and mortgage were presented to the administrator before suit brought.
It is familiar law, that many defects or omissions in pleading to which objection might have been taken by demurrer, are deemed waived after judgment; every presumption and intendment being in favor of the correctness of the judgment. (Stephen on Pl. 147, 149; Gould's Pl. 496; 1 Barb. Ch. Pr. 395.)
The omission to present does not go to the " cause of action," which is sufficiently stated on the record, but to the regularity of the commencement of the suit. (1 Sand. R. 228.)
2. After judgment, it will be presumed that all the essential preliminaries to a right of action were observed and complied with.
The Supreme Court of Texas, " whose statutes on the settlement of the estates of deceased persons closely resemble our own," has decided this very point adversely to appellant's case.
In Dawzey v. Swinney, (7 Tex. 624,) the plaintiff commenced proceedings in the Probate Court to enforce the payment of a note and mortgage which he held against the decedent. There was no averment that the claim had been presented to the Judge for his approval, as required by the statute, antecedent to the application for the sale of the mortgaged property.
The Court say: " That this is essential to support the claim is admitted; but, nevertheless, in the Probate Court, it is not a necessary averment, because it may be proven, though not averred."
JUDGES: Burnett, J., delivered the opinion of the Court. Field, J., concurring.
OPINION
BURNETT, Judge
The following opinion was delivered, on re-argument, by Baldwin, J.--Terry, C. J., and Field, J., concurring.
The appellant contends that the case of Ellissen v. Halleck (6 Cal. 386,) is decisive of this case. There, however, the objection was taken by demurrer. Here the record shows no answer by the administrator. On the contrary, a stipulation appears in the record, signed by the Attorney for the plaintiff, and Nathan Porter, " Attorney for the widow," consenting to a decree upon certain terms; and the decree was entered accordingly. We think it clear that the failure to aver this presentment is not such a fatal objection to the complaint as to make judgment by default a nullity, or reviewable on appeal. The administrator, it is true, could only be sued in a given event; but it is, to say the least, very questionable, notwithstanding the ruling in Halleck v. Ellissen, whether this matter be not matter of abatement; at all events, we feel no hesitation in holding, in cases where the administrator does not set up his privilege by demurrer or answer, but suffers judgment to go by default, that this is a confession that he is properly suable. Wherever the subject-matter of the plea or defense is, that the plaintiff cannot maintain any action at any time, whether present or future, in respect of the supposed cause of action, it may, and usually must, be pleaded in bar; but matter which merely defeats the present proceeding, and does not show that the plaintiff is forever concluded, should, in general, be pleaded in abatement. (1 Chitty Pl. 446.)
The case of J. L. Hunt v. Porter, administrator, decided at the October Term, 1856, sustains this view. The Court say: " The assignment of error here is not supported by the decision of Ellissen v. Folsom's Executors, at this term. In that case, there was a demurrer to the declaration, and we held the demurrer to be well taken. In this case, the objection to the declaration comes too late. It must be presumed, in favor of sustaining the judgment of the District Court, that proof was made of the disallowance of the claim by the administrator, which supplied the want of the averment to that effect.
Judgment affirmed.
CONCUR
FIELD
Field, J. I concur in the judgment of affirmance, but upon grounds different from those stated in the opinion of Mr. Justice Burnett.