E. A. Yorke & Co. v. S. W. Scott & Co.

Wyly, J. The defendants have appealed from a judgment or confirmation of a default against them. The proof in the record satisfactorily establishes the correctness of the account on which the suit is iounded. As to the objection tliat the petition discloses no cause of action, we will remark that the exception was not pleaded by the defendants; [55] that we can only examine and revise tiie issues presented to the court of the first instance, and do not propose to consider issues raised only in the brief of counsel. As to the objection that the depositions, received by the court to prove the demand, appear to have been taken by the clerk before the trial, and not in open court, we will observe that there was no bill of exceptions taken to the admissibility of the evidence, and therefore we decline to consider it. This question was examined in Brander, Williams & Co. v. Goodwin, and another, 6 An. 521, a case directly in point, in which it was held that “ where a judgment by default was confirmed upon testimony sworn to before the deputy clerk, but his attestation does not show that it was taken in open court, it is liable to objection; but the objection will not be examined by the Supreme Court, unless brought before it by bill of exceptions or in some other legal manner; and it forms no excuse for not taking the bill of exceptions, that it was a confirmation of a judgment by default, as the defendant should have been present to protect himself from the effects of illegal testimony.” On this point we consider the jurisprudence settled. Judgment affirmed.