(after stating the facts). It must be conceded that the proceedings in this special proceeding have been conducted very irregularly from its beginning. If objection had been taken in apt time, without amendment allowed, it must have been dismissed. But no objection was at any time made because of irregularities, and now the sole question for our decision is, whether or not the complaint states facts sufficient to constitute a cause of action.
The manifest purpose of the plaintiff was to bring the special proceeding allowed by the statute (The Code, §1448). The nature of his claim, and the relief he seeks, plainly indicate such purpose. He is a judgment creditor of the defendant executor, and seeks, because of the laches of the ■executor, to have his debt paid out of the assets of the testator, and inasmuch as the personal assets in the hands of the executor have been exhausted, he demands that the land of the testator devised by the will — all that he had — be sold to make assets to pay his debt.
The statute cited, allows a creditor of a -deceased person to bring a special proceeding or a civil action, “ in his own name and in behalf of himself and all other creditors of the deceased,” against the latter’s personal representatives, “to compel him to an account of his administration, and to pay the creditors what may be payable to them respectively and after prescribing the course of procedure as to notice to creditors to appear and prove their respective claims, taking accounts, &c., &c., the statute {The Code, §§1474, 1475,) further provides as follows: “ If it shall appear at any time during, or upon, or after taking of the account of a personal representative, that the personal assets are insufficient to pay the debts of the deceased in full, and that he *141died seized of real property, it shall be the duty of the Judge or clerk, at the instance of any party, to issue a sunamons-in the name of the personal represenative, or of the creditors generally, to the heirs, devisees and others in possession, of the lands of the deceased, to appear and show cause why said lands should not be sold for assets. Upon the return of the summons, the proceeding shall be as directed in other-like cases.”
It 'thus appears, that the Superior Court has jurisdiction by special proceeding, of the matters, and for the purpose indicated in the statute cited, and that in the course of such proceedings, the clerk acts as and for the Court, as he does generally in cases of special proceedings.
In this case, however, the summons was not made returnable as to time, as the statute (The Code, §1450,) requires— the plaintiff does not in terms, either in the summons or the complaiht, purport to sue for himself and all other creditors of the testator — no notice was given to creditors to. appear and prove their debts respectivelj'’ — no accounts were taken — the executor was not sued alone, but the legatees and devisees of the will were at the beginning, and not at a subsequent stage of the proceeding, as the statute (The Code, §1474-,) provides, made parties defendant. No creditor except the plaintiff appeared before the Court.
Notwithstanding such irregularities, we think the complaint states facts sufficient to constitute a cause of action, cognizable by Special Proceeding, and that the judgment is valid, upon the ground that the Court had jurisdiction of the parties and the subject-matter, and no objection was-made at any time by any of the parties, that the course of procedure was irregular.
The plaintiff brought his Special Proceeding, and he was-therefore before the Court. Although the summons was not made returnable as to time, as in such cases it ought to have been, it was served upon all the defendants except one, and *142the answer embraced him. The defendant executor made no objection to the relief demanded. The other defendants all appeared and made defence by answer; they did not contend that the proceeding did not purport to be for the benefit of all the creditors; it was not suggested by them that other creditors had been notified to appear and prove their debts, .and that no account had been taken. They simply broadly denied that the land sought to be sold as that of the testator ever belonged to him, and that they claim title thereto under him; and they further denied-that the personal assets of the testator have been exhausted. They admitted the plaintiff’s debt. At the trial, the verdict of the jury upon both the issues raised was in favor of the plaintiff, and the Court gave Judgment that the land be sold to make assets, that the plaintiff’s debt be paid out of the same, and the surplus paid to the executor, for the benefit of the devisees. This judgment may be irregular, it may be erroneous, but no objection is made to it upon such grounds.
The plaintiff states facts which entitle him to have the land sold to pay his debt. The objection is that the procedure was not regular. The proceeding did not purport to be for the benefit of all the creditors. It may be, however, that the plaintiff was the only creditor. Moreover, the purpose of the proceeding obviously — necessarily—indicates its character, and the Court might have directed notice to issue to •creditors. It might even yet do so, and, indeed, ought to do so if there be any. The defendant devisees were not brought into Court regularly at the proper time in the course of the proceeding, but they chose to ajjpear and make defence upon the merits, making no objection on account of any irregularities. They must, therefore, be held to have waived them. The Court properly held that the complaint states facts sufficient to constitute a cause of action, and in this respect there is no error. To the end that further proceedings maj'- be *143taken in the cause, let this opinion be certified to the Superior Court. It is so ordered.
.No error. Affirmed.