Connor v. Elliott

• Decision Date: 09 June 1910
• Citation: Connor v. Elliott, 59 Fla. 227, 52 So. 729 (Fla. 1910)
• Parties: CONNOR et ux. v. ELLIOTT.
• Court: Florida Supreme Court

52 So. 729

59 Fla. 227

CONNOR et ux. v. ELLIOTT.

Florida Supreme Court, Division A.

June 9, 1910

Error to Circuit Court, Marion County; W. S. Bullock, Judge.

Action between C. E. Connor and Rubie C. Connor and J. M. Elliott. From an order granting a new trial, C. E. Connor and Rubie C Connor bring error. Affirmed.

Syllabus by the Court

SYLLABUS

Where no action is taken on an issue tendered by a replication, a new trial should be granted.

When a chancery case and a case at law involving the same legal questions between the same parties are pending in the same court and the legal questions will be determined in the chancery suit, good practice suggests the continuance of the law case until the chancery case is disposed of.

COUNSEL Wm. Hocker and L. W. Duval, for plaintiffs in error.

Hampton & Hampton, for defendant in error.

OPINION

WHITFIELD C.J.

Writ of error was taken to an order granting a new trial, and, under the statute, the court 'shall review the said order, and if the cause be reversed, shall direct final judgment to be entered in the court below, for the party who had obtained the verdict in the court below, unless a motion in arrest of judgment, or for judgment non obstante veredicto, shall be made and prevail.' Section 1695, Gen. St. 1906.

The motion for new trial appears in the bill of exceptions with a statement that the motion was granted and an exception noted. An order granting the new trial signed by the trial judge is in the record proper.

On a writ of error to an order granting a new trial in an action at law under the statute, the only questions to be considered are those involved in the order granting a new trial. A motion for new trial is addressed to the sound judicial discretion of the trial courts, and, where a trial court grants such a motion, the action in doing so is presumed to be in accordance with the justice and merits of the case, unless the contrary appears by the record. An order of the trial court granting a new trial should not be disturbed by an appellate court, unless it appears affirmatively from the record that there has been an abuse of a sound judicial discretion, or that some settled principle of law has been violated. Jones v. Jacksonville El Co., 56 Fla. 452, 47 So. 1.

The action was ejectment under the statute. One of the pleas offered as a defense on equitable grounds averred that 'these defendants executed and delivered to the plaintiff two deeds embracing and describing the lands described and referred to in plaintiff's declaration, which said deeds were made and executed to the said plaintiff to secure the payment of a debt then and there due from the defendant C. E Connor to the said plaintiff, and that the plaintiff's only interest in said lands is as security for the said debt so due from the defendant C. E. Connor to the plaintiff, and this the defendants are ready to verify.' The court refused to strike this plea, and allowed the plaintiff to file the following replication thereto: 'That it is not true that he accepted the deeds and conveyances...