
    Pfantz v. Culver & Co. et al.
    
    1. Admission on improper evidence. The Supreme Court will not reverse the judgment of the court below upon the ground that improper evidence offered by appellee was admitted, when it is shown by the record that the appellee was entitled to judgment upon the pleadings.
    2. Allegations taken as tele. When a defendant makes an appearance in an action, but makes no answer nor excuse therefor, the allegations of the petition will be taken as true.
    
      Appeal from Linn District Court.
    
    Monday, June 9.
    This action was commenced before a justice of tbe peace upon tbe following instrument:
    “ Chicago, May 13, 1861.
    “ Hoffman & G-elpcke :
    “ Pay to Eobert Maxwell or order, Fifty-four & Dollars.
    Culver & Co.”
    Indorsed, “Eobert Maxwell.”
    Tbe drawers and payees were made defendants, but answered not. Maxwell appealed, and on tbe trial in District Court, plaintiff offered in evidence tbe draft and certificate of protest, and upon tbis evidence, and this alone, judgment was rendered for plaintiff, and defendant appeals.
    
      Thompson & Corbett for tbe appellant.
    Smyth, Young & Smyth for tbe appellee.
   Wright, J.

Tbe rejection of tbe testimony, objected to by defendants, and admitted in tbe court below, would not avail them, for tbe plaintiff is entitled to judgment upon tbe averments contained in bis petition, wbicb stand undenied. If, therefore, tbe testimony was improperly admitted, (and sueb is our opinion,) it is an error without prejudice. For if the cause, for this error, should be reversed and remanded, defendants are in default, and in no condition to controvert the allegations of the petition, which are clearly sufficient to entitle the plaintiff to judgment. Defendants were in court, made an appearance, but made no answer, nor excuse therefor.

The judgment must, therefore, stand

Affirmed.  