
    CHEEVERS vs. BURKE’S ADMINISTRATRIX.
    Westers- Dis.
    
      September,1841.
    APPEAL EROM THE COURT OP PROBATES POP THE PARISH OP ST. MARTIX.
    Aftei- a judgment “by default, and answer to the merits, an exception denying the defendant’s capacity to be sued as administratrix, is not admissible.
    Where a case comes up on a judgment of non-suit in which there was no trial on the merits, or hill of exception taken, this court oannot go into the merits.
    This is an action on an account against the administratrix of Wm. Burke, deceased, for lumber and materials furnished for repairs and improvements of the dwelling house and kitchen of the deceased, amounting to $377 78, according to a detailed account annexed to the petition.
    The defendant pleaded the general issue; and also averred that certain admissions of the correctness of said account, made by her in writing at the foot of it, were made in error and are not binding on the estate, the claim being unliqui-dated. She puts the plaintiff on strict proof, and prays that the demand be rejected. She then filéd an exception for the dismissal of the suit, on the ground, that she was the widow of the deceased, and natural tutrix of the children, but had never been appointed administratrix.
    There was judgment of non-suit, and the plaintiff appealed.
    
      Magill & Morse, for the plaintiff.
    
      VoorMes, contra.
   Garland, J.

delivered the opinion of the court.

Petitioner alleges that the estate of William Burke, deceased, is indebted to him the sum of $377 78, for lumber furnished the said William Burke, from the 15th of June, 1839, up to December the 18th, of the same year, to be used in the “repairs and improvement of a two story house and kitchen of said Burke, 'together with lumber for the house in which his widow Eleanor Lee now resides.” He alleges he has a privilege on the said buildings as having furnished materials for their repair and improvement.. He alleges “Eleanor Lee has been, legally appointed administratrix of tire succession,” refuses t0 pay t}le aforesaid sum. He therefore prays that Eleanor Lee be cited, and he have judgment against the sue-. pession for the amount of his claim and costs. With his. pgjjtjQjj plaintiff files a detailed account against the estate of William Burke, at the foot of which, “Eleanor Lee, widow and administratrix of the late William Burke,” admits in writ-. ing, that the ' lumber was furnished and employed for the Purpose alleged, and that the, sum claimed is due. On the 11th of August, 1840, a judgment by default was taken, and on the 22d of February, 1841, the defendant filed an answer to the merits. On the same day, “the defendant amending her original answer,” says, she is the widow and surviving partner of William Burke, deceased, and natural tutrix of her minor children issue of said marriage, but she has never been legally appointed administratrix of Burke’s succession, that she has applied for said appointment, but has never legally qualified as such, she therefore asks this suit to be dismissed. Whereupon the judge says, “the plaintiff cannot maintain this action in law,” and enters a judgment of non-suit.

mentby delimit and. answer to the merits, exception de-fendfnt’s "capa-a?3"administra-missii)lV10t ad"

Where a ease judgment °n0f non-suit, in which there was no trial on hill of ex’cep-coür^cannótgo mto the merits,

In this judgment the judge erred, The defendant, after a judgment by default, and an answer to the merits, had no ° J right to file any such exception. The 23d section of the act. to amend the Code of Practice, approved March 20, 1839, says> “hereafter no dilatory exceptions shall be allowed in any case> after a judgment by default has been taken, and in every case must be pleaded in limine lilis; nor shall such exceptions hereafter be admitted in an answer in any cause.”

The defendant does not except to the jurisdiction of the C0UrtJ but merely wishes the plaintiff to prove her representa-hve capacity. This she cannot do, as by her answer to the merits she has admitted the capacity in which she was charged, and the law absolutely forbids the filing of any such exception after a default or plea to the merits,

^11 ^le P°hfts filed, the parties seem to wish us to go into the merits of the case, they do not appear Lo have been examined in the court below; there is therefore nothing- fcgr us to review, no evidence having come up with the record.

The judgment of the Probate Court is therefore annulled, avoided and reversed, and it is further ordered that this cause be remanded to the Probate Court of the parish of St. Martin, to be proceeded in according- to law, the defendant and appellee paying the costs of this appeal.  