
    Callison v. Autry and Wife, Adm’x.
    Where several defendants are all served with process, and the judgment recites that “the parties appeared,” tho presumption is that the want; of the indorsement of the filing by the clerk upon tho answer of one of the defendants was a clerical omission. (Note 80.;
    In the absence of a statement of facts, it is presumed, in support of the ludgmonfc, that every fact has* boon proved which could liavo been legally proved under tho averments in the petition. Tho same presumption obtains in favor of a judgment by default.
    An averment that the defendant ordered the note to be paid to tho plaintiff is sufficient, in the absence of a special exception, to authorize the introduction of proof that the note was indorsed to the plaintiff by the defendant; and where there is no statement of facts, or where the judgment is by default, tho presumption is that such was the fact.
    Error from Houston. This suit was brought by tho intestate of the defendants in error, in his life-lime, against Joshua J. Hall and. the plaintiff in error. Tho petition alleged that the defendant Hall, on tiie 14th day of December, • 1842, “made, his certain due. bill in writing,” whereby he “acknowledged that there was then due from him, said Hall, to J. Pinckney Henderson one thousand dollars for value received,” and that said Henderson transferred said due bill to tho defendant Callison without recourse; that said Callison “ordered ” the said sum of money therein specified to be paid to the plaintiff, whereby-the said defendants became indebted, &c.; concluding in the ordinary form of a petition upon a promissory note.
    At the Fall Term, 1S4G, the defendant nail filed his separate answer. There was also in the record what purported to be tho separate answer of the de.fenfl- • ant Callison, entitled of the Spring Term, 1S47; but this answer did not appear to have been marked by tho cleric as filed. The case was tried at the Fall Term, 1848, and there was a verdict and judgment thereon for the plaintiff. The judgment recited that “ the parties, by their attorneys, appeared in open court and joined issue; whereupon came a jury,” &c.
    The defendant Callison brought a writ of error.
    
      Thomas J. Jennings, for plaintiff in error,
    argued that, the answer of Calli-sou not being marked tiled, tiie judgment as to him must be taken to be a -judgment; by default; that tiie averments of Ihe petition did not amount to an allegation that the title to (lie note was in the plaintiff, (1 Chit. PL, 700;) that if tiie averments of tiie petition could be construed to amount to an averment of a title, legal or equitable, sufficient to enable tire plaintiff to maintain an . action upon it against tho maker, yet there is no sufficient allegation that the defendant indorsed the note or assigned it in writing, without which he would not be, bound as indorser.
    Yoakum, for tiie defendant in error, suggested delay.
   IVheeldb, J.

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.  