Brander v. Goodin

Rost, J. I concur in the opinion of the court, but for reasons in some respect different. When evidence is offered, in the absence of the defendant, to make a judgment by default final, I think the judge has the right, and that it is his duty, to require legal evidence. I do not believe, any judge would consider it consistent with his duty or his oath, to admit the affidavits of witnesses, taken out of his presence, when the witnesses were present in court, and could be examined. I am bound to believe, therefore, that such affidavits were not received in this case; and that the evidence offered to prove the contract of the defendants to take the freight, was taken in open court. The certificate of the 'clerk, given during the trial, conveys no other meaning to my mind.