Jacksonville St. R. Co. v. Walton

• Decision Date: 14 March 1900
• Citation: 28 So. 59,42 Fla. 54
• Parties: JACKSONVILLE ST. R. CO. v. WALTON et ux.
• Court: Florida Supreme Court

28 So. 59

42 Fla. 54

JACKSONVILLE ST. R. CO. v. WALTON et ux.

Florida Supreme Court

March 14, 1900

Error to circuit court, Duval county; Rhydon M. Call, Judge.

Action by R. J. Walton and Margaret E. Walton against the Jacksonville Street-Railway Company. Judgment for plaintiffs. Defendant brings error. Motion to strike bill of exceptions. Denied.

Syllabus by the Court

SYLLABUS

1. Where the circuit judge, before certifying and signing a bill of exceptions, strikes or erases matter therefrom, such erased or stricken matter forms no part of such bill, and it should be omitted by the clerk in copying such bill into the transcript of the record on writ of error.

2. Where a bill of exceptions is regularly incorporated in a transcript of record that is properly certified by the clerk below to contain a true and correct copy of such 'papers and proceedings in said cause as appears upon the records and files of his office,' in the absence of any proper showing to the contrary it is sufficient evidence of the fact that such bill of exceptions was filed with the clerk below.

3. The duty devolves upon the plaintiff in error or his counsel upon resort to an appellate court, to make the errors complained of clearly to appear, if they in truth exist, by a proper record of all the facts and circumstances pertinent to and connected with such alleged error; but, in exhibiting them, the duty likewise devolves upon him to exhibit all such facts and circumstances fairly and truly. And, when such matters are exhibited by a bill of exceptions, the duty likewise devolves upon the trial judge to see to it carefully, before giving such bill authenticity by his signature and certificate, that it does fairly, fully, truly and justly set forth the matters exhibited thereby exactly as they transpired at the trial; and this duty is emphasized when it is remembered that a bill of exceptions depends for its authenticity upon the certification and signature thereof by the trial judge, and that when so certified and signed it imports to an appellate court absolute verity, and cannot be altered, amended, averred against, or impeached in the appellate court by anything dehors the certified record.

4. An evidentiary bill of exceptions, that should contain all the evidence, but nothing besides the evidence, in the case, was designed for the purpose of entirely separating, for appellate review, the question of the sufficiency of the evidence to support the verdict, when presented by an appropriate assignment of error, from all other questions raised by any other assignment of error; and, too, for the purpose of determining whether, in view of the whole evidence in the case exhibited thereby, any error found is harmless. The bill of exceptions proper was designed to exhibit all other questions in pais than the sufficiency of the evidence to support the verdict, and should, in and of itself, without reference to the evidentiary bill, fully, fairly, and truly exhibit all pertinent matters necessary to the proper consideration and adjudication of the different assignments of error thereby expected to be maintained. The bill of exceptions proper will never be resorted to to test the question of the sufficiency of the evidence to support the verdict; that question being exclusively confined to a consideration of the whole evidence as set forth and exhibited in and by the evidentiary bill, regardless of such parts or portions of the evidence as may be exhibited in the bill of exceptions proper for the exposé therein of other questions assigned as error. While this is the distinctive office of said two respective bills of exception, that will in every case govern and guide the appellate court in the final consideration of cases on their merits, and while the court upon such final consideration will not refer from one of such bills of exception to the other in aid of explanatory of, or to supplement or to impeach, any matter or question that under the rules properly belongs exclusively to either, except to determine from the evidentiary bill whether any error found is harmless, yet on a preliminary motion, seasonably made, directly to test the question of compliance with the rules in the make-up of the bill of exceptions proper, the court, for the purpose of determining such question, will resort to the evidentiary bill, as part of the whole authenticated record in the case, when it is urged that such evidentiary bill will disclose the fact that the bill of exceptions proper has been made up in its substance in patent violation of the rules, and in such manner as to make that appear to be error which may not be error, were the proper matters set forth in such bill, that the rules contemplate it should contain, and that have been omitted therefrom, and, such evidentiary bill shows, could with truth and propriety have been included therein. And upon such preliminary motion the court will not strike out the whole or any part of the bill of exceptions proper, when there are other questions properly presented thereby for adjudication, but upon such motion will adjudge in advance that it will not consider, on the final determination of the case, any assignment of error founded upon matters thus improperly set forth. Carter, J., dissenting.

5. The well-established rule is that every charge given by the court to the jury must be predicated upon some testimony adduced in the case, tending to support the facts hypothesised in such charge. The design of the rules adopted for the preparation of bills of exception proper, in requiring a statement of the evidence, or what the evidence tended to prove, in connection with the charge predicated on such evidence, was not for the purpose of testing the truth of such evidence, or as a test of the weight or preponderance of evidence, but solely for the purpose of disclosing to the appellate court whether or not the above well-settled rule had been observed by the trial judge in his charges of the law of the case to the jury, viz. whether the charges given, or requested and refused, were or were not predicated on sufficient evidence adduced in the case. All that the rules contemplate or require in the exposition of the evidence upon which charges were predicated is that the bill of exceptions proper shall correctly state, in connection with every charge that hypothesises any given state of facts, the evidence actually adduced in the case that tends to establish the particular state of facts hypothesised in such charge, and this in as concise form as is compatible with a just, fair, and complete test of the proposition as to whether or not such charge was warranted by the facts adduced in evidence. The testimony adduced in rebuttal or impeachment of the evidence upon which any charge was predicated has no place in the exposition in the bill of exceptions of the evidence upon which such charge was actually predicated; neither should evidence be stated in connection therewith that is wholly foreign to the state of facts hypothesised in the given charge. If a charge is given, or requested and refused, by a judge, that hypothesises a state of facts or a statement of fact that there was no testimony tending to prove, the fact should be stated in the bill of exceptions that there was no evidence adduced tending to prove the state of facts or fact hypothesised in such charge; or, if there is difference of opinion as between counsel and the judge as to the true tendency of the proof conceived to be supportive of any such charge, the particular evidence itself thus conceived to be supportive thereof should be stated in the bill of exceptions, so that the appellate court may determine the applicability of the charge to the proofs thought to be in sustenance of it.

6. The rules contemplate that in making up bills of exception based upon the admission or rejection of evidence, where the evidence admitted or rejected, forming the subject of the exception, does not in and of itself show upon its face its pertinency and relevancy to the issue being tried, and there is other evidence, either admitted, or proffered and rejected, that will connect it with the case and show its relevancy and pertinence, such other connecting evidence should be set forth in the bill of exceptions, so as to enable the appellate court fully and fairly to pass upon the propriety or impropriety of the admission or rejection thereof.

COUNSEL

John E. Hartridge and J. B. Whitfield, for plaintiff in error.

Alex. St. Clair-Abrams, for defendants in error.

OPINION

TAYLOR C.J.

In the transcript of the record brought here by writ of error from the circuit court of Duval county in this cause there are two bills of exceptions,--the bill of exceptions proper, and an evidentiary bill of exceptions. The defendants in error now make two motions, both aimed at the bill of exceptions proper. The first of these motions asks that the entire bill of exceptions be stricken from the record on the grounds:

(1) That it is not a true and correct copy of the bill of exceptions signed by the circuit judge.

(2) Because it does not conform to special rule 3 of the rules of the supreme court (18 South. xii.), for the preparation of the bill of exceptions.

(3) Because the statement of testimony in said bill of exceptions upon which the 1st, 3d, 4th, 5th, 7th, 8th, 9th, 10th, 13th 14th, 15th, 16th, 17th, 18th, 19th, 20th, 21st, 23d, 24th, and 25th charges were predicated, is not confined to the substance of such portion of the proof only as were pertinent to the charges, as required by the rule, but contains statements of evidence not pertinent to the charges and upon which said charges were not predicated, and in many instances omits entirely to state the evidence upon which said charges...