Belcher v. Ross

Citations

• 33 Tex. 12

Syllabus

<p>1. Suit by indorsee of a promissory note against maker and indorser, brought to the third term of court after maturity of the note ; the indorsement being in blank and no averment in the petition of the time when it was made. Judgment taken by default, and writ of error pursued by the indorser on the assignment that more than two terms of the court had elapsed after indorsement and before suit. Held, that as the allegations of the petition must he taken as true by reason of the default, and as the petition alleges an indebtedness by the indorser as well as the maker, which could only be true if the suit was brought in due time, the judgment must be affirmed.</p> <p>2. On the facts and pleadings indicated above, the presumption that the blank indorsement was made at the date of the note, will not be allowed in this . court after judgment by default in the court below ; this court must indulge the contrary presumption, that the indorsement was made subsequent to the date of the note, and that suit was brought in due time to fix the indorser’s liability. If the fact was otherwise, the remedy of the indorser was not by recourse to this court, where the question cannot be mooted under such circumstances, but by motion or bill of review in the court below.</p> <p>3. The allegation in the petition that the mdorser “ was indebted ” to the plaintiff is held m this case to be a virtual averment' that the indorsement was made at a time to he available to the plaintiff in support oí this action, and the default is an admission by the indorser of the truth of the averment.</p>