¶1On Motion for Rehearing.
¶2Appellant contends that he can, on motion for rehearing in this court for the first time, raise and take advantage of the fact that the record does not affirmatively show due service of citation on the minor, Dorothy Lynn Drescher, even though it does affirmatively show that she appeared in person and by attorney and by guardian ad litem and answered and successfully defended against the cause asserted by him.
¶3The suit was instituted on October 2, 1935; Floyd L. Drescher died on December 23, 1935, and the cause did not come on for trial until February 22, 1937. It does not appear affirmatively by the record that the minor was not personally cited but only negatively so by failure to show citation and service; however, it does affirmatively appear from the face of the record that the minor appeared in person, by attorney and by guardian ad litem, appointed by the trial court, and answered and defended.
¶4The duty rested on appellant to cause citation to issue and to see that same was served on Dorothy Lynn Drescher in the manner provided by law within a reasonable time after the death of her father. Vernon’s Annotated Civil Statutes, art. 2080; Hurst v. Marshall, 75 Tex. 452, 13 S.W. 33.
¶5 The trial court should not have proceeded to trial on the merits of the cause asserted by appellant without proper service of citation on Dorothy Lynn Drescher, Wright v. Jones, Tex.Com.App., 52 S.W.2d 247; but should have dismissed the cause in the event service was not *960secured within a reasonable time. Alexander v. Barfield, 6 Tex. 400; Trahan v. Roberts, Tex.Civ.App., 48 S.W.2d 503; Bogle v. Landa, 127 Tex. 317, 94 S.W.2d 154; John E. Quarles Co. v. Lee, Tex.Com.App., 58 S.W.2d 77; Baker v. Arnett, Tex.Civ.App., 106 S.W.2d 849; Kimball-Krough Pump Co. v. Judd, Tex.Civ.App., 88 S.W.2d 579. Likewise, the court was not authorized to appoint a guardian ad litem for her if not served by process, Kremer v. Haynie, 67 Tex. 450, 3 S.W. 676; City of Dallas v. Crawford, Tex.Civ.App., 222 S.W. 305; Maury v. Keller, Tex.Civ.App., 53 S.W. 59; Tutt’s Heirs v. Morgan, 18 Tex.Civ.App., 627, 42 S.W. 578, 46 S.W. 122; Moore v. Prince, 5 Tex.Civ.App. 352, 23 S.W. 1113; yet the judgment is not void. Wallis v. Stuart, 92 Tex. 568, 50 S.W. 567; McAnear v. Epperson, 54 Tex. 220, 38 Am.Rep. 625; Alston v. Emmerson, 83 Tex. 231, 18 S.W. 566, 29 Am.St.Rep. 639; Ellis v. Stewart, Tex.Civ.App., 24 S.W. 585; 23 Tex.Jur. p. 771, sec. 73.
¶6If judgment had been rendered against Dorothy Lynn Drescher without proper service of citation affirmatively appearing of record, she could have taken advantage of such fact at any stage of the proceedings on appeal or writ of error because the judgment against her would have partaken of the nature of a judgment by default, for the reason that she was without legal capacity under the law to waive any of its requirements, Wheeler v. Ahrenbeak, 54 Tex. 535; De Proy v. Progakis, Tex.Com.App., 269 S.W. 78; Sprague v. Haines, 68 Tex. 215, 4 S.W. 371; but this is not true or applicable to appellant for he could waive everything except the jurisdiction of the court. Blum v. Goldman, 66 Tex. 621, 1 S.W. 899; Hurst v. Marshall, 75 Tex. 452, 13 S.W. 33; Perry v. Jaggers, Tex.Civ.App., 9 S.W.2d 143; Brasher v. Carnation Co. of Texas, Tex.Civ.App., 92 S.W.2d 573. And the burden is on him to show affirmatively by the record that error was committed. Lindly v. Lindly, 102 Tex. 135, 113 S.W. 750, pars. 2 and 3; Mills v. Mills, Tex.Com.App., 265 S.W. 142; Hannon v. Henson, Tex.Com.App., 15 S.W.2d 579.
¶7Ordinarily, in the absence of anything in the record to the contrary, it will be presumed that the party against whom a cause of action is asserted had been served with citation, Mosaic Templars of America v. Smith, Tex.Civ.App., 236 S.W. 175; Water & Light Company of El Campo v. El Campo Light, Ice & Water Co., Tex.Civ.App., 150 S.W. 259; and the exceptions to this rule appear to be where the question is raised by the party against whom judgment by default is rendered and a minor against whom judgment is entered. The reason for the rule where judgment is against a minor is given in the case of Wheeler v. Ahrenbeak, 54 Tex. 535.
¶8This matter could and ought to have been raised in the trial court. The error is not apparent upon the face of the record. Appellant, with full knowledge of all the facts, voluntarily announced ready for trial and actively participated therein without either suggesting to the trial court want of service of process on the minor or discharging the burden resting upon him to cause her to be duly served with citation within a reasonable time after the death of her father, Floyd L. Drescher. He had a full day in court according to his choosing, and if there was any error in the proceedings, it was occasioned by his negligence, and such error did not affect him or his cause in anywise. We think appellant is estopped by his conduct to assert at this time want of service of citation on the appellee, Dorothy Lynn Drescher. Spence v. State National Bank of El Paso, Tex.Com.App., 5 S.W.2d 754, pars. 3 and 4; Overton v. Ragland, Tex.Civ.App., 54 S.W.2d 240; Hopkins v. Donaho, 4 Tex. 336; Ben C. Jones & Co. v. State Printing Co., Tex.Civ.App., 228 S.W. 619; Debes v. Greenstone, Tex.Civ.App., 260 S.W. 211; Koontz v. Colglazier & Hoff, Tex.Civ.App., 5 S.W.2d 618; Pullman Co. v. Cox, Tex.Civ.App., 220 S.W. 599; Masterson v. Turnley, Tex.Civ.App., 220 S.W. 428; Grubbs v. Nash, Tex.Civ.App., 275 S.W. 257; 3 Tex.Jur. sec. 728, p. 1026; sec. 729, pp. 1028, 1029; sec. 730, pp. 1029, 1030; sec. 731, pp. 1031, 1032.
¶9The motion for rehearing is overruled.