Alexander v. Rhine
| Decision Date | 09 August 1919 |
| Citation | 78 Fla. 313,82 So. 831 |
| Parties | ALEXANDER v. RHINE. |
| Court | Florida Supreme Court |
Error to Circuit Court, Broward County; E. B. Donnell, Judge.
Action by J. S. Rhine against D. C. Alexander. Judgment for plaintiff, and defendant brings error. Affirmed.
Additional Syllabus by Editorial Staff.
Syllabus by the Court
An appellate court cannot review an order of the trial court granting or refusing a motion for new trial, unless the ruling is excepted to, and the motion, ruling, and exception incorporated in the bill of exceptions. Such motion is not a part of the record proper, and its incorporation therein is unavailing.
COUNSEL J. F. Bunn, of Ft. Lauderdale, for plaintiff in error.
C. E Farrington, of Ft. Lauderdale, for defendant in error.
The defendant in error, plaintiff in the court below, sued the plaintiff in error in the circuit court of Broward county for recovery of part of a commission on the sale of a parcel of real estate, alleging that he assisted in bringing interested parties together, and that under a contract between the parties to the suit he was entitled to half of the commission. The case went to the jury for trial of the issues made by the pleadings, and they found in favor of the plaintiff below, assessing his damages at $1,500 and interest, for which amount a judgment was duly entered. This judgment the plaintiff in error seeks to have reviewed by this court; his assignments of error all being directed to alleged error of the court below in denying his motion for a new trial, the gist of all the assignments being that the verdict was not supported by the evidence.
At the beginning of discussion of the vital testimony in the case, the brief of counsel for plaintiff in error contains this statement:
'From this point the testimony of the plaintiff and his witnesses on the one hand, and the defendant and his witnesses on the other hand, becomes very conflicting.'
Although the case must turn upon a point of practice, we call attention to the well-settled doctrine that this court will not disturb a verdict, where the vital testimony is conflicting, and the judge of the court below refuses to set it aside, unless the preponderance of the testimony against the verdict is so great as to raise a presumption of passion, prejudice, or some other improper influence. McLeod v. Citizens' Bank of Live Oak, 61 Fla. 350, 56 So. 190; Southern Exp. Co. v. Williamson, 66 Fla. 286, 63 So. 433, L. R. A. 1916C, 1208; Atlantic Coast Line R. Co. v. Whitney, 65 Fla. 72, 61 So. 179, and earlier cases referred to in the cases cited.
But the plaintiff in error took no exception to the ruling of the court below in refusing his motion for a new trial, nor did he even incorporate the motion and ruling in his bill of exceptions. Either of these defects would be fatal in his cause in this court.
In the absence of any exception to an order for a new trial, the sufficiency of the evidence is not...
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Pillet v. Ershick
...63 Fla. 316, 58 So. 364; Tampa & J. R. Co. v. Crawford, 67 Fla. 77, 64 So. 437; Greer v. Illgen, 79 Fla. 383, 84 So. 156; Alexander v. Rhine, 78 Fla. 313, 82 So. 831. facts in the case of Rubio v. Armour & Co., 94 Fla. 761, 116 So. 40, 41, are not analogous to those in the case at bar. In t......
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Mann v. Etchells
... ... evidence. See Schultz v. Pacific Ins. Co., 14 Fla ... 73; McMurray v. Basnett, 18 Fla. 609; Alexander ... v. Rhine, 78 Fla. 313, 82 So. 831 ... It is ... next contended that the evidence was insufficient to sustain ... the verdict ... ...
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Holstun v. Embry
... ... Bryant, 68 Fla. 113, 66 So. 562; Powell v ... State, 93 Fla. 756, 112 So. 608; [124 Fla. 564] ... McMurray v. Basnett, 18 Fla. 609; Alexander v ... Rhine, 78 Fla. 313, 82 So. 831 ... Trial ... courts have a liberal discretion in granting new trials; as ... said once, almost ... ...
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Reliance Fertilizer Co. v. Davis
...in error at the time they were given, nor was the giving of such charges made a ground of the motion for a new trial. See Alexander v. Rhine, 78 Fla. 313, 82 So. 831; Citizens' Bank of Williston v. Williams, 91 589, 110 So. 252; Great American Insurance Co. v. Suarez, 107 Fla. 705, 146 So. ......