On Motion for Rehearing.
McGHEE, Justice.In our opinion filed herein reference is made to the fact the testamentary trustees (who were also executors of decedent’s estate) were served with notice of hearing upon the final account and report in their individual names. Our opinion then stated appellants had made no point thereof. On this motion for rehearing, appellants now contend that some statements made in their reply brief under their point objecting that they (appellants) were not served with such notice sufficiently raised the point now argued. We think otherwise, Rule 15(14, 15), Supreme Court Rules; Montgomery v. Karavas, 1941, 45 N.M. 287, 114 P.2d 776, but will hold our rule in abeyance because of the nature of the question. We will also assume for purposes of our consideration that appellants have standing to question the character of service upon their trustees.
Directing our attention to the question raised, it is immediately noted that Walter G. Kirkbride, Carl F. Eisenhour and Clarence H. Hickok, the named devisees in the will as testamentary trustees, duly qualified and acting as such, were specifically named as trustees in the final account and report. Each of them entered an appearance in the proceedings and consented that final judgment be entered. Their entry of appearance and consent to judgment under these circumstances must place beyond doubt their participating in the probate proceedings in their capacity as trustees, fully curing any defects which might exist in the service of notice upon them. Hignett v. Atchison, T. & S. F. Ry. Co., 1928, 33 N.M. 620, 274 P. 44. Compare State ex rel. Skinner v. District Court, 1955, 60 N.M. 255, 291 P.2d 301.
The rule is where it is doubtful in what capacity a party is sued, reference may be had to the record to determine the question. Boland v. Cecil, 1944, 65 Cal.App.2d Supp. 832, 150 P.2d 819; Duke v. Williams, 1955, 92 Ga.App. 151, 88 S.E.2d 289; Rose v. Third Nat. Bank, 1944, 27 Tenn.App. 553, 183 S.W.2d 1.
The only case relied upon by appellants is Farmers’ Loan & Trust Co. v. Essex, 1903, 66 Kan. 100, 71 P. 268, which was concerned with the effect of a default judgment purporting to bar a first mortgage lien assigned of record to “Farmers’ Loan & Trust Company, trustee”, and service by publication had been had upon that company without the designation of trustee. The case has no application here.
The objection is ruled against appellants and their motion for rehearing is hereby denied. It Is So Ordered.
COMPTON, C. J., and LUJAN and SADLER, JJ., and EDWIN L. SWOPE, D. J., concur. KIKER, J., not participating.