delivered the opinion of the court.
This is an action against the endorsers of a promissory note, on the usual allegations of demand from the maker, and due notice of non-payment. The plaintiffs also sue for a small balance of an account, for goods sold and delivered.
The defendants having failed to appear or answer, a judgment by default was taken. Before trial, however, they filed an answer, and the judgment by default was set aside. In their answer, they deny that the plaintiffs constitute the *550firm of James Magee & Co.,.'and (bat (bey are (be owners of the note sued on ; and they further deny notice as endorsers.
A dilatory exception denying* the identity of the plaintiffs as tt firm, may be pleaded after a judgment by default, .on filing an answer to‘the merits. Although an issue is tacitly joined by a judgment by default, yet, when it is set aside, by filing an answer, it is as if it had •never existed. In denying •that the names of the plaintiffs do in fact compose the firm in whose name they sue, and not averring .that othor persons compose it, is insufficient. An exception of this kind ought, .atleast, to show, .that admitting, the facts alleged, a judgment in the case would not be a bar to a second action.The court, considering the first, part of the answer, which denied the identity of the plain tiffs as composing the firm, in the nature of a dilatory exception, and that it came too Tate, after a judgment by default had been taken, ordered it tobe stricken out, and the defendants took a bill of exceptions.
We think the court erred. The Code of Practice provides, that the defendant may, at any time, appear and file his answer, before a 'definitive judgment by default is rendered, and the first judgment taken shall be set aside. Article. 314. The filing of an answer is a matter of right, and does not depend upon the discretion of the court, nor does the Code appear to us (o restrict the defendant in relation to the exceptions which he may plead in such a case. It is true, there is a class of exceptions, which (he Code requires to be pleaded h liminilitis, before issue joined, which we undersland to be an answer to (he merits, and that an issue is tacitly joined by a judgment by default; but when that judgment is set aside by filing an answer, it is as if it had never existed. But, while we express an opinion, (hat the court below erred in striking out that part of the answer, we do not consider it a sufficient ground for remanding the case. The defendants deny that the plaintiffs, whose names are set forth in the petition, and who, sue as James Magee & Co., do, in fact, compose that firm; but they do not aver what other persons belong to it. An exception of this kind ought at least to show, that, admitting the facts alleged to be true, a judgment in the case would not be'a bar to a second action. In the form in which it is pleaded, it .amounts to nothing more than a denial of the right of the plaintiffs to recover according to the'allegations in the petition. That denial is sufficiently repeated in other parts of the answer, and it is clear that the plaintiffs cannot recover unless they show that they are the holders of the nole, and that the defendants are indebted to them in a further balance of accounts.
If the inter™gator íes annexed io the petition ai<£ nocausé shown they mil be taken for confessed on the' tual‘ Notice of pro-endorsement11!! m!utel>y afi™> partners, is suffi-°ient-The account is sufficiently proved by the neglect of the defendants to answer the interrogatories annexed to the petition. They had ample opportunities to do so. The plaintiffs were not bound, in our opinion, to give them any further notice, although parties may require their interrogatories to be answered in open court. Code of Practice, 351. 1 0 , . The court did not, in our opinion, err in instructing the jury that the failure of the defendants to answer the interrogatories, amounted to a confession of the matters therein ’ asserted.
The facts thus disclosed are, that the defendants, being indebted to Magee & Co., for merchandize to the amount of nine hundred and thirty-four dollars and seventy-one cents, endorsed over to them the note in question, in part payment, leaving the balance of one hundred and twenty-nine dollars and thirty-one cents, for which judgment has been rendered in this case. The plaintiffs, therefore, appear as the immediate endorsers of the defendants, in consideration of an existing debt, and it is shown that they were the holders when this suit was brought.
The only remaining question is, whether due notice of protest was given. The notice was lodged in the post-office at St. Francisville, where one of the partners resided. The others lived a few miles from town, and nearer another office, but was'in the habit of receiving his letters at the office in town. It is shown, that he had previously directed the notary to leave any notices of protest in that post-office. From these facts we are authorized to conclude that the notice was received, although the act of placing it in the office might not, by the statute, be considered as constructive notice. Notice to one partner is sufficient.
It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.