Lindsay, J.
A question of'some novelty in this 'State is raised in this record.
A suit was brought by the indorsee of a promissory note against the maker and indorser; service of process was had against each in due time; and no answer being made by either, judgment by default was taken against both. The damages being liquidated, the assessment was made by the clerk, and the final judgment entered. Afterwards, in due time, the indorser filed his petition for a writ of error, and the required bond for costs being executed, the case was brought up by him for revision.
The only assignment of error is, that the judgment was wrong, because more than two terms of the court had elapsed, after endorsement, before the institution of the suit. The note bore date Bebrury 17, 1860, and was payable one day after date. The suit was instituted March 18, 1861. The indorsement was in blank, and no direct and specific averment made in the petition of the time of the indorsement. It seems, therefore, to be insisted that,nothing else appearing, the legal presumption is, that the indorsement was made at the time of the execution and delivery, of the ■note; and if so, legal diligence was not used to fix the liability of the indorser.
Bor some purposes and in some attitudes of partiés litigant the presumption does arise, that an indorsement in blank was made *15contemporaneously with the making of the instrument. The party being served with process had an opportunity, by making an issue of law or of fact, to have placed himself in such an attitude upon the trial in the district' court. Without such an issue made there, the presumption of the time of indorsement did not arise necessarily. As the issue was not made in the court below and the judgment was suffered to go by default, this court must indulge the presumption that the indorsement wa3 made subsequent to the making of the instrument and that the suit was brought in due .time after indorsement so as to fix the liability of the indorser. If it were otherwise, of which the indorser certainly had knowledge, he had his remedy in the court below by motion to set the judgment aside at the term of its rendition; or, if not discovered till after the term, 'by a bill of review for the correction of it. The allegations in the petition are'sufficient to uphold the judgment. It alleges that both the maker and indorser ware indebted to him, the petitioner, the amount of the note sued on. If the suit was not brought to the first or to the second term, showing good cause for failure to bring it to the first, the indorser was not in fact indebted to him. But he alleges he was so indebted. Hence, the allegation affirmed the indorsement to have been made in time to make his action available against the indorser. This virtual averment of the petition was not controverted by demurrer, plea nor answer, and must therefore be taken as true and as admitted-by the indorser. ' This court, having only appellate jurisdiction, cannot directly nor indirectly moot the question of the time of the indorsement here. The judgment is affirmed.
Affirmed.