LOUISIANA STATE BANK vs. SENECAL, 9 La. 225

Martin, J., delivered the opinion of the court. This is an action against the endorser of a promissory note. The defendant failed to answer, and judgment by default was taken, which was made final without any defence being put in. The defendant having appealed from the final judgment, he seeks to reverse it in this court, and assigns, as an error apparent on the face of the record, that it is no where alleged that notice of protest was given to him. The' counsel for the bank urges that notice may have been proved on the trial, and before obtaining final judgment.

He further contends, that no defect of pleading can be assigned as error on the face of the record, which might be cured by legal evidence. This would be correct, if there had been a trial on an issue made up by filing an answer, for then the consent of the party might be inferred, from the want of objection being made to the omission or defect. But, in the absence of any defence, no evidence can be legally given of a fact not alleged in the petition.

It is, therefore, ordered, adjudged and decreed, that the judgment of the Parish Court be anntdled, avoided and reversed, and that there be judgment for the defendant, as in case of a non-suit, with costs in both courts.