The opinion
Buchanan, J.
The defendant has appealed from a judgment confirming a default, rendered against him as maker of a note to the order of Hyde & Oglesby, protested at maturity for non-payment. The plaintiff sues as endorsee. The appellant assigns for errors in the judgment:
1st. That the supplemental petition was not legally served.
2d. That no proof was offered of the endorsement of the payees.
The first of these points is not tenable. The supplemental petition was served in the mode directed by Art. 199 of the Code of Practice.
Upon the second point the record contains no statement of facts, nor any evidence of the signature of the payees. The certificate of the Clerk of the District Court is, that the foregoing pages contain a full and complete transcript of all the proceedings as well as of all the documents filed and evidence adduced in the case.
This certificate fulfils the requirements of the law. Co. Pr., 896; 5 L. R., 298; 12 L. R., 476.
The plaintiff’s case appears to be wanting in evidence indispensible to his right of recovery. 12 Rob., 518 .
The case in 15 L. R., 232, relied on by appellee, differs in the essential particular, that the certificate in that case was, that the transcript did not contain all the evidence.
■ Judgment reversed, and judgment of non-suit, with costs in both Courts.
Judgment on a re-hearing.
Buchanan, J.
In this case, being a suit by endorsee against maker of a promissory note, there was judgment by default in the Court below, confirmed without proof of the signature of the payee and endorser, through whom the plaintiff claimed.
*96 We are satisfied that the proper judgment in such a case, upon the appeal taken by defendant from the judgment confirming the default, is a judgment remanding the cause for further proceedings, and not a judgment of non-suit. See case of Young v. Talbot, 12 R. R.; also Florance v. McFarlane, 15 L. R.
It is therefore adjudged and decreed that the judgment heretofore rendered be set aside; and it is further decreed that this cause be remanded to the District Court for further proceeding upon the judgment by default. The appellant to pay the costs of this appeal.