Gaines v. Morris

Morphy, J. The defendants and appellants are sued as tu-. trix, and co-tutor, of the minor children of Elias Bass, on two. notes drawn by the latter, to the order of, and endorsed by, W. N. Thorn, and bearing other blank endorsements, stated in the peti* tion. They neglected to answer, whereupon judgment was en-. tered up by default, and confirmed in due course of law. The appellants, who are husband and wife, have urged the in* sufficiency of the citation, which the record shows to have been served on Sarah Morris, the tutrix, in person. This, we think, was a legal service on both. Article 182 of the Code of Prac-. tice requires only one citation for both, and its service on either is good. Art. 192. The judgment by default was made final, on proof of the sig* natures of the maker and payee, but none of the subsequent en* dorsements were proved, although specially averred. It is true, that a note endorsed in blank, may be considered as one payable to bearer, and all the endorsements posterior to that, of the payee, may be stricken out on the trial; but as they were stated in the plaintiff’s petition, and were suffered to remain on the note, the [5] signatures of the endorsers ought to have been proved. We find the rule laid down in Bailey on Bills, p. 489, (edition of 1836,) that in an action against the drawer or acceptor of a bill, or the maker of a note, all the endorsements stated, though some may have been stated unnecessarily, must be proved. The plaintiffs, who sue as the last endorsees, not having proved all the signatures-, by which they allege that these notes were transferred to them, judgment was erroneously given in their favor. Shaw and Laurence, for the plaintiffs. Stacy and Sparrow, for the appellants. It is, therefore, ordered that the judgment appealed from be reversed, and that the case be remanded, for further proceedings according to law ; the plaintiffs and appellees paying the costs of this appeal.