Citizens' Bank & Trust Co. v. Spencer

• Decision Date: 21 July 1903
• Citation: 46 Fla. 255,35 So. 73
• Parties: CITIZENS' BANK & TRUST CO. OF TAMPA v. SPENCER, Sheriff.
• Court: Florida Supreme Court

35 So. 73

46 Fla. 255

CITIZENS' BANK & TRUST CO. OF TAMPA v. SPENCER, Sheriff.

Florida Supreme Court

July 21, 1903

In Banc. Error to Circuit Court, Hillsborough County; Evelyn C Maxwell, Judge.

Action by the Citizens' Bank & Trust Company of Tampa against Thomas K. Spencer, sheriff of Hillsborough county. Verdict for plaintiff. From an order granting a new trial, plaintiff brings error. Affirmed.

Syllabus by the Court

SYLLABUS

1. The action of the trial court in granting a motion for a new trial cannot be reversed by the Supreme Court where several grounds of the motion are based upon the rulings of the court in giving or refusing to give instructions, and the ordinary bill of exceptions fails to exhibit a statment of the evidence upon which such instructions were based, or a statement of the proofs showing the propriety or impropriety of such instructions, as required by the rules of this court.

COUNSEL

Gunby & Gibbons and William Hunter, for plaintiff in error.

Sparkman & Carter, for defendant in error.

OPINION

CARTER J.

On May 20, 1898, plaintiff in error instituted an action of replevin against defendant in error in the circuit court of Hillsborough county to recover certain personal property consisting of dry goods, clothing, shoes, hats, furniture and store fixtures, which had been levied upon by the defendant under certain writs of attachment. The plaintiff claimed to have purchased the goods from the attachment debtor just prior to the levy of the attachments, and the defendant claimed that such purchase was void, because fraudulent as to creditors. The defendant pleaded not guilty and a trial was had in December, 1898, resulting in a verdict for plaintiff. Defendant moved for a new trial, assigning 25 grounds; 6 questioning the propriety of the verdict under the evidence and the charge of the court, 13 insisting that the court erred in giving certain instructions at the request of plaintiff, and the remaining 6 alleging error in the refusal to give certain instructions requested by defendant, to which refusal exceptions were duly taken. The motion was heard, and on January 3, 1900, the court made an order granting it in general terms. From this order the plaintiff sued out this writ of error.

In Baggett v. Savannah, Florida & Western Ry. Co. (Fla.) 34 So. 564, it was held that the action of the lower court in granting a motion for a new trial cannot be reviewed by this court where several of the grounds of the motion are based upon the rulings of the court in giving or refusing charges not before this court for consideration. In that case the charges were not set forth in the bill of exceptions, nor were they made...