
    Alfred Johnson and another v. James P. Galbraith.
    Where judgment was taken against several"defendants by default, and the transcript did not show that they either appeared or were served with citation, the Court said, The fair and reasonable presumption would be, that the transcript is imperfect, but we are not authorised to act upon such presumption, as the defendant in error seems to be satisfied with it as presented. And the Court reversed the judgment as to such of the defendants as had joined in the writ of error.
    Error from Caldwell. Tried below before the Hon. Thomas H. Duval.
    
      Wilson & Waul, for plaintiffs in error.
    
      I. G. L. Me Gehee, for defendant in error.
   Lipscomb, J.

The defendant in error filed his petition against Alfred Kelso, Alfred Johnson, B. F. Harper and Jacob Roberts. The petition sets forth that Alfred Kelso and Alfred Johnson gave their promissory note to B. F. Harper, for the sum of three hundred and fifty dollars; that for a valuable consideration Harper endorsed the note to Waggoner ; that whilst in Waggoner’s possession it was accidentally destroyed. Waggoner made an affidavit of the fact of the destruction of the note, which affidavit he endorsed, without recourse, to Roberts ; and Roberts assigned the same affidavit to the petitioner Galbraith. Citation is prayed against Kelso, Johnson, Harper and Roberts. The record does not show that any citation was sued out. Kelso filed an answer. The plaintiff discontinued as to him, and took judgment by default final against Johnson, Harper and Roberts, no one of whom was before the Court. Johnson and Roberts have brought the case up by a writ of error.

The fair and reasonable presumption would be, that the transcript is imperfect; but we are riot authorized to act upon such presumption, as the defendant in error seems to be satisfied with it as presented, and asks for an affirmance of the judgment, and damages as a delay case. The only parties complaining before this Court, are Johnson and Roberts. As to them, the judgment of the Court below is reversed : and the proceedings of the Court below, back to the filing of the petition ; and the case is remanded. Possibly the plaintiff, by an amendment, may present a good cause of action.

Reversed and remanded.  