Tiie several errors assigned may be reduced to a single, inquiry, which is, Is the averment that tiie defendant Callison “ ordered ” the •contents of the note to be paid to the plaintiff a sufficient averment of title in the plaintiff after verdict to support the judgment?
This is not a judgment by default. The parties appeared in open court and joined issue. There was a jury and verdict. And although it does not appear that the answer was filed, there can scarcely he a doubt that this is a mere clerical omission. Both defendants had been duly served with process. And when it is said in tiie record that (lie parties appeared and joined issue, 1 his must be understood of all the parties to tiie suit.
Note 80.—Hopkins v. Donaho, ante, 330.But there is no statement of facts, and even if this were to he regarded as .a judgment, dual by default, we have her lofor.- decided that in support of the judgment we must presume every fact to have been proved which legally could have been proved under tlie averments of the petition. (Hall et al. v. Jackson, 8 Tex. R., 303.) Tlie question then is, could tlie plaintiff, under the averment in question, have proved an indorsement of the note by the defendant Callison? The averment is that the defendant “ordered” the contents of the note to be paid to the plaintiff. Why may not the proof have been that he so ordered the payment by his indorsement upon the note? That certainly would have been the legal mode of making the order. Had there been a statement of facts showing that this proof was in fact made, can there be a doubt that it must have been held sufficient after verdict to support the judgment ? And the case is the same in principle.
Had there been a demurrer to tlie petition, it would have presented a different question. But the present is a question of the sufficiency of an averment, not upon demurrer, but after verdict. It is the^case of a defective averment of title, which is cured by verdict; not that of 'the averment of a defective title, which can be taken advantage of as well after as before verdict. We think it clear that the judgment ought to be affirmed;
Judgment affirmed.