Two errors are assignedFirst, that the court erred in refusing to quash the notice. As to this, it is sufficient to say, that there is nothifig to show that said *65motion, was overruled, or that the court did refuse to quash the notice. There is a motion filed, but what action was had on it, is nowhere shown. It will be time enough to decide that question when it has been passed upon by the court below. We can only presume that the motion was waived by defendant. At all events, he can in this case, claim nothing by it, after trial and judgment.
The second error relates to the admission of the note in evidence. And this objection, as we understand it, is based upon the claimed fact, that no issue was made by the pleadings, or if any, an immaterial one ; for that, as there was no averment that the note was the property of the petitioner, therefore the petition was fatally defective — no testimony could be received, and no judgment rendered thereon. This objection has neither substance or technicality to sustain it. In the first place, the form given in the Code need not be followed strictly. A petition equivalent thereto, is sufficient. This form contemplates the bringing of a suit by the assignee or bearer of a note, made payable to another; and in such case, the use of the words omitted, in this case, become pertinent. But where suit is brought by the original payee, as in this case, it is mere form, at least, to aver that the note has Become his property. But, if material, it was more properly the subject of a demurrer, than of objection on the trial. Immaterial errors, variancés, or defects, are to be disregarded, and none are to be deemed material, unless the court is satisfied that the objecting party will be prejudiced by disregarding or allowing them to be amended. Code, §§ 1757-8. As we have frequently said heretofore, this court will apply these sections, and all of the equitable provisions of the Code, in the spirit as well as letter, and especially so .after issue joined and verdict. We can see no prejudice that could possibly result by disregarding the defect in the petition, if defect it was.
Judgment affirmed.