Falk v. Kimmerle
| Decision Date | 20 April 1909 |
| Citation | 57 Fla. 70,49 So. 504 |
| Parties | FALK et al. v. KIMMERLE et al. |
| Court | Florida Supreme Court |
In Banc. Error to Circuit Court, Escambia County; J. Emmet Wolfe, Judge.
Action by A. J. Kimmerle and others against William M. Falk and others. Judgment for plaintiffs, and defendants bring error. Affirmed.
Syllabus by the Court
In both civil actions and criminal prosecutions, it is within the judicial discretion of the trial court to permit the propounding of leading questions to a witness, and the exercise of that discretion is not reviewable by an appellate court.
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 trial court.
Upon a writ of error, where all the evidence is not incorporated in the bill of exceptions, an appellate court is not warranted in holding that error was committed by the trial court in excluding proffered testimony, unless the relevancy and materiality thereof are clearly made to appear.
COUNSEL Avery & Avery, for plaintiffs in error.
Jones & Pasco and Pattillo Campbell, for defendants in error.
This is an action of assumpsit, instituted by the defendants in error against the plaintiffs in error; the declaration containing two counts--one in the sum of $257.21, with interest, for goods bargained and sold by the plaintiffs to the defendants and the other for a like sum for money found to be due from the defendants to the plaintiffs 'on accounts stated between them'--and the damages being laid at $500. The plea filed by the defendants was 'that they never were indebted as alleged, except in the sum of $198.43.' The case was submitted to a jury upon the issues as made by the pleadings; and a verdict was rendered in favor of the plaintiffs for the sum of $216.23, with interest thereon at the rate of 8 per cent. per annum from the 23d day of April 1907. Final judgment was entered by the court in accordance with the verdict, which judgment the defendants seek to have reviewed here by writ of error.
No point is made on the pleadings, and only two errors are assigned, each of which is based upon the testimony. It may be well to state right at the outset that all of the evidence is not brought before us.
The first assignment is based upon the overruling of the objection of defendants to an interrogatory addressed to two witnesses of plaintiffs, whose testimony was taken upon a commission which the plaintiffs had sued out. We find that the objection was interposed before the issuance of the commission, and that the only ground of objection was that the interrogatory in question was leading. This court has frequently held, in both civil actions and criminal prosecutions, that it is within the discretion of the trial court to permit leading questions, and the exercise of that discretion is not reviewable on writ of error. See Coker v....
To continue reading
Request your trial