Osborn

Action to recover upon a promissory note. Judgment went for plaintiff, from which, and an order denying her motion for a new trial, defendant Fette appeals.

The note, dated June 14, 1907, payable to plaintiff ninety days after date, signed by each of the defendants as principal, was set out in haec verba in the complaint. The appellant Fette filed a separate answer admitting the making and execution of the note as alleged in the complaint, but denied that it was delivered to plaintiff, or that he was the legal holder thereof, or that any sum remained due and unpaid thereon. As a separate defense, appellant alleged that the note was given without consideration, and that her signature thereto was obtained by means of a fraudulent conspiracy entered into between her codefendants and the plaintiff for the purpose of defrauding her and sharing the proceeds derived from such fraudulent conspiracy.

As to all the issues joined by the complaint and answer of appellant, the court, upon ample evidence in support thereof, made findings in favor of plaintiff.

While the fact was not pleaded by way of defense and not made an issue in the case by consent of parties, the court, nevertheless,…