Covington v. Clemmons

• Decision Date: 18 April 1911
• Citation: 61 Fla. 151,55 So. 81
• Parties: COVINGTON v. CLEMMONS.
• Court: Florida Supreme Court

55 So. 81

61 Fla. 151

COVINGTON v. CLEMMONS.

Florida Supreme Court, Division A.

April 18, 1911

Error to Circuit Court, Holmes County; J. Emmet Wolfe, Judge.

Replevin by D. A. Clemmons against John Covington. Judgment for plaintiff, and defendant brings error. Affirmed.

Syllabus by the Court

SYLLABUS

It is the duty of a party resorting to an appellate court to make the errors complained of clearly to appear, if they in truth exist; every presumption being in favor of the correctness of the rulings of the trial court.

Where one of the assignments of error is that 'the court erred in refusing the motion to strike out all testimony in reference to the lease of the timber, because the lease was in writing and the writing was the best evidence,' and the bill of exceptions does not show what question was propounded to the witness which elicited the testimony complained of, what objections were interposed thereto, what motion was made, or just what testimony was sought to be excluded, either by objection or motion, no basis is made to appear for such assignment, and an appellate court is not placed in a position to pass intelligently thereon, so it can only declare that such assignment has not been sustained.

Assignments based upon the exclusion of testimony to be available must be so presented to an appellate court as to make it appear that the excluded testimony was relevant and material, or otherwise proper to be admitted.

The action of replevin is brought for the recovery of the possession of personal property, and the actual title to such property is not necessarily involved therein; but the issue to be tried and determined is the right of possession to the property in dispute.

The mere fact that technical error may have been committed by the trial court in instructing the jury as to the form of the verdict is not sufficient to call for and compel a reversal of the judgment, especially when such error was cured by the subsequent action of the court, and no harm could have resulted to the losing party.

Where a jury returns a verdict into court which is not in proper form, and, before such verdict is entered in the record, the court instructs them to bring in a verdict in the form required by law, and directs that a proper form be prepared which being done, the jury retired and brought in their verdict in legal form, signed by their foreman, upon which judgment is entered, there is no error in the proceedings. A jury may very or correct a verdict before they are discharged, and before it is recorded; and a form of verdict prepared under the direction of the court, assented to by the jury, is sufficient.

COUNSEL Daniel Campbell & Son, for plaintiff in error.

C. M Cox, for defendant in error.

OPINION

SHACKLEFORD J.

This is an action of replevin, instituted by the defendant in error against the plaintiff in error, to recover the possession of certain chattels. No point is made on the pleadings, the declaration being in the usual form, to which the defendant filed a plea of not guilty. The cause came on for trial before a jury, which resulted in a verdict and judgment in favor of the plaintiff. This judgment is brought here for review by writ of error.

The first assignment is that 'the court erred in refusing the motion to strike out all testimony in reference to the lease of the timber, because the lease was in writing, and the writing was the best evidence.' In the prefatory portion of the bill of exceptions, we find the following:

'And the plaintiff, as a witness in his own behalf, testified concerning a lease on timber from the defendant to the plaintiff, and the defendant, by his attorney, objected to the said testimony, and moved the court to strike out all the testimony in reference to the lease of the timber because the lease was in writing, and the writing was the best evidence. And the said judge denied the motion of defendant's attorney, to which ruling of the court the defendant did then and there except.'

On examining the bill of exceptions, we find that the testimony of the witness is given in narrative form, and nowhere therein does it appear what question was propounded to him what objections were interposed thereto, what motion was made, or what testimony was sought to be excluded, either by objection or motion. It is impossible for us to glean these facts from the bill of exceptions; consequently we are not placed in a position to pass intelligently upon the alleged error. We have repeatedly ruled that it is the duty of a party resorting to an appellate court to make the errors complained of clearly to appear, if they in truth exist; every presumption being in favor of the correctness of the respective rulings of the trial court. See the discussion and the authorities collected in McKinnon v. Lewis, 60 Fla. ----, 53 So. 940. We also held therein, in conformity with former rulings, that, upon a writ of error, the plaintiff in error becomes the actor in the appellate court, whether he occupied the position of plaintiff or defendant in the court below, and upon him rests the burden. It is incumbent upon him to show that the different rulings of the trial court of which he complains, or some of them, are so infected with error as to call for and compel a reversal of the judgment. The mere fact that technical error was committed by the trial court in some of its rulings may not be sufficient; the errors must have been harmful or prejudicial to the rights of the plaintiff in error. Upon a writ of error, the respective parties litigant are presumed to have had their day in court, and to have had the points at issue between them fairly and impartially tried and determined in accordance with the law of the land. The final judgment rendered in the trial court is presumed to be correct, and this presumption must be met in the appellate court and overcome by the plaintiff in error. In addition to the authorities cited in that opinion to the like effect, see, also, Dibble v. Truluck, 11 Fla. 135, text 137, and Frisbee v. Timanus, 12 Fla. 537, text 543. Also see the full discussion and authorities collected in Hoodless v. Jernigan, 46 Fla. 213, 35 So. 656. We have further held that, if a question is propounded to a witness which tends to elicit improper testimony, it is the duty of the opposite party to object to it and obtain a ruling on his objection. If improper testimony is given in response to a proper question, the proper method of removing it from the consideration of the jury is a motion to strike it. If improper testimony is given in response to an improper question to which no objection is made, a motion to strike is the recognized mode of removing it; but in such a case the granting or refusing of the motion is in the sound discretion of the trial court, and an appellate court will not disturb such ruling, unless an abuse of such discretion is shown. Thompson v. State, 55 Fla. 189, 46 So. 842. Also, see, Platt v. Rowand, 54 Fla. 237, 45 So. 32, and Putnal v. State, 56 Fla. 86, 47 So. 846. We have also held in a number of cases that in both criminal prosecutions and civil actions a motion to strike out the entire testimony of a witness should be denied, if any part thereof is admissible for any purpose. The motion should be confined specifically to the inadmissible portion. Platt v. Rowand, supra...