On Motion for Rehearing.
In appellee’s motion for rehearing, his counsel urgently insists that we erred in our original opinion, and cites Belcher v. Ross, 33 Tex. 13, Canales v. Perez, 65 Tex. 293, and George v. Vaughan, 55 Tex. 131, as sustaining the contention that the petition in the original suit, filed October 30, 1911, was good as against a general demurrer, and that therefore the judgment rendered thereon was not void. He admits that of the three eases cited, the first is the strongest in support of his contention, and that, so far as he has found from diligent investigation, it has never been cited, either by the Supreme Court, or by any of the Courts of Civil Appeals. In this case, it was held that in support of a judgment by default, on a note, the presumption will be indulged that the in-dorsement was made subsequent to the date of the note, and that suit was brought in due time to fix the indorser’s liability. While it appears that some statements and arguments are used in the course of the cited opinion as to the expression, “were indebted to him,” being an allegation of the fact that suit was filed in due time, which expression we consider, not as an allegation of fact hut as a conclusion of law of the pleader, yet, so far as the conclusions therein reached may apply to the issue presented in the instant case, they are not at variance with the views expressed in our original opinion.
[9-12] While it is true that appellee, plaintiff in the original suit, did not in so many words allege the date of the indorsement by Mrs. McCamant, yet by the use of certain expressions contained in the petition he did in effect aver that he acquired the note before maturity. He alleged that he was an “innocent holder for value,” and that defendant indorsed the note in blank, and “in due course of business plaintiff became the owner and holder for value.” In the law merchant, part of the common law adopted by this state, these terms have a meaning more or less fixed." In the “negotiable instruments law,” adopted by many of the states, and embodying, in the main, the principles of the law merchant, it is provided:
“ ‘A holder in due course' is one who has taken the instrument under the following conditions: First, that the instrument is complete and regular on its face; second, that be became owner of it before it was overdue,” etc. 2 Words and Phrases (Second Series) 895, and cases there cited; 7 Cyc. 925 (B); 3 R. C. L. § 238, p. 1031, and section 250, p. 1045; 1 Daniel on Negotiable Instruments, § 769a, p. 885 ; Kneeland v. Miles, 24 S. W. 1113-1115.
An innocent or bona fide holder for value of negotiable paper is one who has taken it in good faith for a valuable consideration in the ordinary course of business, when it was not overdue, etc. 2 Enc. Digest (Texas) p. 904, § B, and cases there cited.
[13] Hence we are forced to the conclusion that plaintiff in the original suit did, in effect and in fact, allege the transfer to Min before the maturity of the note, which was some 15 months before suit was filed. As was said in the original opinion, no presumption can be indulged against the record to' support the judgment. Courts have no more power, until their action is called into exercise by pleadings, to render judgment in favor of a person than they have to render judg-
*1100ment against a person until he has heen brought within their jurisdiction. Dunlap v. Southerlin, 63 Tex. 38, 43; Sandoval v. Rosser, 26 S. W. 930; Railway Co. v. Vieno, 26 S. W. 230; Flores v. Smith, 66 Tex. 115, 18 S. W. 224; Anding v. Perkins, 29 Tex. 348; Neill v. Newton, 24 Tex. 202.
The motion for rehearing is overruled.