Cross v. Aby

• Decision Date: 04 February 1908
• Citation: 55 Fla. 311,45 So. 820
• Parties: CROSS v. ABY et al.
• Court: Florida Supreme Court

45 So. 820

55 Fla. 311

CROSS v. ABY et al.

Florida Supreme Court, Division A.

February 4, 1908

Rehearing Denied March 10, 1908.

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

Ejectment by Nannie L. Aby and others against C. T. Cross. Judgment for plaintiffs, and defendant brings error. Affirmed.

Syllabus by the Court

SYLLABUS

An appellate court will consider only such grounds of objection to the admissibility of evidence as were made in the court below, the plaintiff in error being confined to the specific grounds of objection made by him in the trial court, and only such of the grounds so made below as are argued will be considered by an appellate court.

In the absence of evidence to the contrary, an alteration in a written instrument will be presumed to have been made contemporaneously with the execution of the instrument, and properly made, if nothing appears to the contrary. If however, the court considers the alteration suspicious on its face, such presumption would be overcome, and the onus would rest with the party offering the instrument to explain it.

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.

The proof of the contents of a lost paper ought to be clear and satisfactory, and, where neither the language nor any part of the contents of such lost paper is given by the witness, his opinion as to the meaning or effect thereof is incompetent to prove its contents.

Where a witness who has been interrogated as to an alleged lost paper is unable to say whether or not he had ever seen such paper no error is committed in refusing to permit him to testify as to what his impression was in regard to it.

In an action of ejectment, where the defendants base their claim of title to the lands in controversy by reason of adverse possession thereof for the statutory period and had introduced witnesses to prove such possession, who had testified that the same had consisted in cutting and hauling logs therefrom at different times during a number of years by the grantee in an alleged lost deed, through or under whom the defendants claim, a wide latitude should be allowed in the cross-examination of such witnesses, and no error was committed in permitting the asking of questions tending to establish the fact that such grantee was in the habit of cutting logs wherever he found them, whether he owned the lands or not.

No error is committed in refusing to strike out the answer of a witness to the effect that there was a prior deed executed to the plaintiff other than the one introduced in evidence; such testimony not being violative of the rule relating to the admissibility of secondary evidence.

In determining the correctness of charges and instructions, they must be considered as a whole; and if, as a whole, they are free from error, an assignment predicated on isolated paragraphs or portions must fail, even though standing alone such isolated paragraphs or portions might be misleading.

In an action of ejectment, where the defendants rely upon an alleged lost deed as a material link in their chain of title the proof of the contents thereof, or of the substance of the contents of the operative parts thereof, should be clear and satisfactory, and no error is committed in so instructing the jury.

In an action of ejectment, an instruction that 'the burden of proof is upon the plaintiff, first, to establish title and right of possession prima facie. This the plaintiff has done by producing a patent from the government to M. and deraigning his title from M.'--violates the spirit of the statute requiring the charge or instructions to be upon 'the law of the case only,' but such an instruction though technically erroneous, will not constitute reversible error, since it is plain that no harm could ensue to the defendants therefrom, viewing the whole evidence.

Evidence examined, and found sufficient to sustain the verdict.

A marked distinction exists between the matter of 'opinion' and the matter of 'impression' or 'understanding.' The former is predicated upon the existence or nonexistence of a fact, the latter is only a deduction drawn from the assumption of that fact; so that, while the one may rise to the standard of evidence, the other is universally rejected as such.

[Citing Words and Phrases, vol. 4, p. 3444.]

COUNSEL

Maxwell & Reeves, for plaintiff in error.

T. F. West, for defendants in error.

OPINION

SHACKLEFORD C.J.

The defendants in error brought an action of ejectment against the plaintiff in error in the circuit court for Santa Rosa county, which resulted in a verdict and judgment for the plaintiffs, which the defendant seeks to have reviewed here upon writ of error.

No error is assigned in connection with the pleadings; the declaration being in the usual form, to which the defendant interposed a plea of not guilty.

The first assignment is as follows: 'The ruling of the court in overruling the objection of the defendant to the admission in evidence of the power of attorney from Nannie L. Aby and R. H. Aby to H. F. Mints.'

We find from the bill of exceptions that the only grounds of objection interposed to the admissibility of this evidence were that 'the signature of R. H. Aby appeared to have been erased or changed. (2) That the signature of the witness A. E. May appeared to have been erased or changed. (3) That the acknowledgment has been altered. (4) That there is no sufficient identification of the parties of the acknowledgment.'

It is settled law here that this court cannot consider any grounds of objection to the admissibility of evidence except such as were made in the court below, the plaintiff in error being confined to the specific grounds of objection made by him in the trial court, and only such of those grounds will be considered by this court as are argued before it. Pittman v. State, 51 Fla. 94, 41 So. 385, 8 L. R. A. (N. S.) 509, and authorities therein cited; Seaboard Air Line R. Co. v. Searborough, 52 Fla. 425, 42 So. 406; Platt v. Rowand, 54 Fla. ----, 45 So. 32. The first three grounds of objection are the only ones urged before us. As was said in Kendrick v. Latham, 25 Fla. 819, text 844, 6 So. 871, text 877: 'In the absence of evidence to the contrary, an alteration will be presumed to have been made contemporaneously with the execution of the instrument, and properly made, if nothing appears to the contrary.' Also see authorities there cited, especially Stewart v. Preston, 1 Fla. 10, 44 Am. Dec. 621. The following authorities will also prove instructive: Ward v. Cheney, 117 Ala. 238, 22 So. 996; Hammon's Evidence, p. 132, and authorities cited in notes; 1 Ency. of Ev. 773, 810; Abbott's Trial Brief, Mode of Proving Facts (2d Ed.) 149 et seq.; 2 Elliott's Evidence, § 1516. It is undoubtedly true that in some aspects this has proved a vexed question for the courts, and there is irreconcilable conflict in the authorities, but this court is committed to the rule announced in Stewart v. Preston, supra, and Kendrick v. Latham, supra, which two cases are approvingly cited in City of Orlando v. Gooding, 34 Fla. 244, 15 South. 770, wherein will be found a discussion of the four different rules enunciated by the various courts and additional reasons given for adhering to the rule previously adopted by this court, which, however, is amplified therein. We fully approve of what was said in the last cited case upon this point, but see no occasion for repeating it here. There is no conflict in that case and Harris v. Bank of Jacksonville, 22 Fla. 501, 1 So. 140, 1 Am. St. Rep. 201, when the variant facts and circumstances in the two cases are considered and compared.

It is urged before us by the defendant that the instrument in question is not a deed or mortgage, and therefore entitled after the recordation thereof to admission in evidence without proof of its execution under the provisions of section 21 of article 16 of the state Constitution of 1885. We do not feel called upon to pass upon this contention. In fact, it would not be proper for us to do so, since no such ground of objection was made below. In addition to the authorities already cited, see Marsh v. Bennett, 49 Fla. 186, 38 So. 237.

The first assignment must fail.

The next assignment urged before us is the third, which is as follows:

'The ruling of the court in sustaining the objection of plaintiffs to the testimony of the witness J. W. Collins that the deed from James P. Mints to W. D. J. Collins had the same form and appearance as other deeds.' $The bill of exceptions discloses that the plaintiffs had introduced in evidence, as their basis of title, a patent from the United States to Samuel P. Mints to the lands in controversy, deeds from the heirs of said Mints, and also conveyances from their grantees to plaintiffs. The defendant sought to establish the fact that in his lifetime Samuel P. Mints (in the assignment of error, and also in the testimony referred to as James P. Mints, without explanation) executed a deed to such lands to W. D. J. Collins, which deed had been lost. J. W. Collins, the witness of defendant, had testified that he was a son of W. D. J. Collins, and had seen the deed from Mints to Collins in 1896 at his stepmother's house and in her possession. The cross-examination of the witness had developed the fact that he could not read land numbers, that he did not remember the description in the deed and could not say there was any description therein, and that his recollection of the instrument, generally speaking, was vague and shadowy. As a matter of fact, his testimony in chief was by

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