
    Martin Hefferlin v. Cyrus R. Stuckslager.
    1. Probate Court — Jurisdiction how obtained. Where, in a proceeding against an , executor for waste of his decedent’s estate, instituted in the probate court under the provisions of §§223, 224, 225 and 226, ch. 91, Comp. L. 1862, the record shows that such executor was present before such court, appearing to the action or proceeding by pleading, and otherwise, Held, that such record sufficiently shows that the probate court had obtained jurisdiction of the person, in such case, even though it is not shown that service of process had been previously made upon such executor.
    2. Evidence — Admissibility of Judgment. „In an action on an official bond, brought by S. against an executor and his sureties, the records of the probate court showing a judgment in favor of S. against such executor for waste of his decedent’s estate, is admissible in evidence.
    8. Judgment — Error not presumed against it. It will be presumed that such evidence as was necessary to sustain a judgment was introduced until the contrary is shown. {Shelton v. Dunn, ante, p. 128.)
    
      Error from Wyandotte District Court.
    
    Stuckslager sued Hefferlin and bis sureties before a justice of the peace, counting on an executor’s bond, and a breach thereof by Hefferlin. On the trial, plaintiff offered in evidence the record of a judgment rendered by the probate court of Wyandotte county in a proceeding in his favor against Hefferlin as executor ; the justice admitted- the judgment in evidence, and defendant excepted. Judgment being given in favor of Stuckslager, the defendant Hefferlin removed the cause to the district court by petition in error. The district court affirmed the 'judgment of the justice, and Hefferlin, and his co-defendants now bring the case here for review. The error assigned in the court below, and relied upon in this court, was the admitting in evidence the record of the judgment and proceedings of the probate court. The particular points of objection thereto are stated in the opinion of the court hereinafter given.
    
      
      Jesse Cooper,' for plaintiffs in error:
    1. The justice erred in admitting the records of the probate court to be read in evidence. The records do not show that Hefferlin was served with process, and the probate court had no jurisdiction of his person. The proceedings in that court were under a special statute, (§§ 223 to 226, ch. 91, Comp. L. 1862, p. 545;) and the code authorizing a voluntary appearance does not apply in this case.. 16 Mo., 437; 19 Mo., 317.
    2.‘ The probate coui’t had no jurisdiction of the subject-matter, and the proceedings and judgmént of that court are coram non judice, and void. There is no proper suggestion showing that the executor had been guilty of waste; no issue was directed by the probate' court to be tried.
    
      Bartlett <$• .Hale, for defendant in error:
    The proceedings before the probate court were regular. The requirements of the statute were complied with. Stuckslager, á, creditor, after a .settlement showing a deficiency, filed a complaint suggesting that Hefferlin, the executor, was guilty of waste. The executor appeared in person, and filed an answer in writing. The case was tried, and the court gave judgment.
    The appearance and answer of the executor, followed by a trial, at which he was present/and to which he consented by taking part therein, constitute a waiver of all process, and service thereof. It is too late to object for want of process and service, even if process ■vyere ueqessary.
    The justice was clearly right in admitting the record and judgment in evidence; and the order of the district court, so deciding, must be affirmed,
   The opinion of the court was delivered by

Sajvford, J.:

This was an action oi’iginally brought before a justice of the peace, to recover of Martin Hefferlin and bis sureties, upon an executor’s bond, tbe amount of principal, interest, and costs claimed to be due upon a judgment of tbe probate court of Wyandotte county. Tbe said judgment had theretofore been rendered in a .proceeding instituted in the probate court against tbe said Hefferlin, as executor of tbe estate of one No wen a Harris, deceased, upon a suggestion of waste of said estate, and of failure to account for all tbe assets thereof which bad come into bis bands, and which said proceeding was prosecuted under tbe provisions of tbe statute in such case made and provided: §§ 223, 224, 225, 226, cb. 91, Comp. L. 1862. Tbe record does not contain either tbe petition or tbe answer which were filed in tbe justice’s court, but it does show that such pleadings were in fact so filed; and in tbe absence of anything to tbe contrary, it is presumable that tbe issues were thus properly joined between tbe parties. There is however no point made in respect of these matters; neither is there any claim that tbe suit was not properly brought.

admissibility, ■ Upon tbe trial before tbe justice, tbe executor’s bond, which bad been executed by Hefferlin and his sureties for the faithful administration of said estate, was introduced in evidence. Then followed tbe offering in evidence of tbe record of tbe probate court before referred to. To tbe introduction of tbe said record, tbe defendants objected, first, “because it did not appear that said Hefferlin bad been served with process to appear before said judge of probate;” and second, “because said judge of probate bad no jurisdiction of tbe subject-matter of said action, and could not render a legal judgment in the premises.” We do not think that the objections were well founded. The proceeding in the probate court against the executor was one authorized by the law, which has already been referred to; and so far as we are able to judge,- it was conducted in an unobjectionable manner. The subject-matter of the inquiry was fully within the meaning of the statute, and it was therefore not only within the power of the probate court to make the investigation, hut it was a duty so to do. The parties also by their acts récognized the validity and regularity of the proceedings before the probate court. The defendant Hefferlin, as executor, as well as the complainant, appeared therein, in person and by counsel. They both filed their written statements in regard to the matters in difference between them, and thereupon the issues being joined as upon a petition and answer in other eases, they proceeded to trial; and evidence having been submitted on behalf of either party, the probate court found for the complainant, and rendered judgment accordingly. It is true, that the record does not show a service of process upon the defendant Ilefferlin; but it does show, as has already been stated, that he was present before the court, and appearing the action or proceeding, by pleading, and otherwise; and all this he did, without making any objection of any kind to the proceedings, as far as may be learned from the record. The objection, even if it could have been regarded at any time, comes too late to avail the party anything, and especially when made under the circumstances surrounding this case. No other grounds of objection were urged to the introduction of the testimony, and we think that the justice was right in allowing the record of the proceedings and judgment of the probate court to be received in evidence.

Some other questions, as touching what was proven on the trial before the justice, have been suggested in this case; but they are not insisted on in the brief or counsel. It is to be remarked however m this connection, that the record does not purport to contain all of the evidence which was offered, by and on behalf of either the plaintiff or defendant; and such being the case no question of this kind will be considered in this court. It will be presumed that such evidence as was necessary to sustain the judgment was introduced, until the contrary is shown. Shelton v. Dunn, ante, p. 128.

The judgment of the district court will be affirmed.

All the Justices concurring.  