Florida Land Inv. Co. v. Williams

• Decision Date: 14 February 1922
• Citation: Florida Land Inv. Co. v. Williams, 83 Fla. 251, 91 So. 177 (Fla. 1922)
• Parties: FLORIDA LAND INVESTMENT CO. v. WILLIAMS et al.
• Court: Florida Supreme Court

91 So. 177

83 Fla. 251

FLORIDA LAND INVESTMENT CO. v. WILLIAMS et al.

Florida Supreme Court

February 14, 1922

Rehearing Denied March 18, 1922.

Action between the Florida Land Investment Company, a corporation and Lucy R. Williams and husband. To review the judgment rendered, the former brings error. On motion by plaintiff in error to have a certain document included in and made a part of the transcript and record.

Motion denied.

Whitfield and Taylor, JJ., dissenting.

Syllabus by the Court

SYLLABUS

Document not incorporated into, or attached to, or by apt language made a part of, bill cannot be considered a part thereof. Where a document sought to be made a part of a bill of exceptions is not incorporated into the body of the bill, and is not attached thereto, or by apt language made a part thereof, and so identified and authenticated by letter number, or mark mentioned in the bill as that there can be no doubt of its identity, the document cannot be considered by an appellate court as a part of the bill of exceptions.

Corrections in bill of exceptions must be made by trial court, and amended record brought up by certiorari. If a 'bill of exceptions is improperly, incompletely or incorrectly made up in the trial court, corrections therein must be made there by the trial judge, and the amended record brought up by certiorari.'

COUNSEL

Charles E. Pelot and L. S. Gaulden, both of Jacksonville, for plaintiff in error.

Charles A. Powers and H. L. Anderson, both of Jacksonville, for defendants in error.

OPINION

WEST, J.

This is a motion by plaintiff in error to have 'included in and made a part of the transcript of record in this cause' a certified copy of a certain deed of conveyance alleged in the motion to have been offered, received, and filed in evidence in the trial of the cause.

The motion, which is sworn to as true by counsel for plaintiff in error, asserts that it was 'the intention of the circuit judge to include a copy of said deed as one of the exhibits attached to the bill of exceptions, and described in the certificate of said circuit judge, at the end of the bill of exceptions.'

At the conclusion of the bill of exceptions, preceding the signature of the trial judge, the following statement appears:

'And I, the said judge of said court, do hereby certify that the evidence and testimony set forth and the exhibits numbered 2 to 10, inclusive, hereto attached, is all of the evidence introduced at the trial, not stricken from the record by the court, be both parties to said cause, and that all the testimony introduced as aforesaid is included in this bill of exceptions.

'George Couper Gibbs, Judge.'

Accompanying the motion is a copy of a deed of conveyance of certain lands therein described made on the 8th day of November, A. D. 1913, by Frank T. Nooney and Nyra D. Nooney, his wife, to Florida Land Investment Company, a corporation, certified by the clerk of the circuit court of Duval county as:

'A true and correct copy and a literal transcript of the warranty deed filed in evidence herein, in the cause wherein Florida Land Investment Company, a corporation, is plaintiff and Lucy R. Williams and F. O. Williams, her husband, are defendants; as the same appears among the files of record in this office.'

Attached to this deed is the following certificate of the trial judge:

'I hereby certify that the deed from Frank T. Nooney and wife to the Florida Land Investment Company, a certified copy of which is hereto attached, was, in the trial of the above-entitled cause, on March 7, 1921, received and filed in evidence and described by the plaintiff as Plaintiff's Exhibit 9, and was not stricken from the record.

'That it was the intention of the court that a copy of said deed would be included in the bill of exceptions as an exhibit to said bill of exceptions.

'Done this 4th day of January, A. D. 1922.

'George Couper Gibbs, Judge of said Court.'

In the transcript of the record immediately following the signature of the trial judge to the bill of exceptions are copies of several deeds of conveyance, and other documents, each bearing upon it the word 'exhibit,' but there is nothing whatever upon the pages of the transcript of the record to indicate that the conveyances and the documents there copied were authenticated in any way mentioned in the bill of exceptions, or that they were physically attached to the bill of exceptions as exhibits, and made a part thereof. They have upon them no number, letter or mark of any character for their identification and verification. There is nothing copied upon the pages of the transcript of the record where such documents are reproduced to indicate that any marks or certificates of any kind for the purpose of identification were placed upon the instruments as introduced and filed in evidence. Nor is there any identifying mark, certificate, or signature upon the deed now sought to be 'made a part of the transcript of the record' except the following memoranda:

'By Plaintiff--For Identification 'Ex. 3.'

'Filed in evidence by plaintiff Mar. 7, 1921. Frank Brown, Clerk Circuit Court.'

This clearly does not identify it as Plaintiff's Exhibit 9 offered in evidence in the trial of this case. All these documents may have been, and no doubt were, offered and received in evidence as asserted in the motion, but there is nothing in the transcript of the record from which this assertion may be verified.

In many jurisdictions it is held that documents offered in evidence which are identified and authenticated by the signature of the trial judge or otherwise may be made a part of the bill of exceptions by being attached thereto as exhibits, but when this is done such documents are required to be definitely referred to, accurately described, and expressly made a part of the bill of exceptions, and such exhibits must be so authenticated as that there may be no doubt of their identity with the documents referred to and described in the bill of exceptions. 2 R. C. L. p. 148; 4 C.J. § 1836, p. 236; Leftwitch v. Lecanu, 4 Wall. 187, 18 L.Ed. 338; Humbarger v. Humbarger, 72 Kan. 412, 83 P. 1095, 115 Am. St. Rep. 204; O'Neill v. Chicago, R. L., etc., Co., 66 Neb. 638, 92 N.W. 731, 60 L. R. A. 443, 1 Ann. Cas. 337; Williams v. Daly, 33 Ill.App. 454; Moses v. Loomis, 156 Ill. 392, 40 N.E. 952, 47 Am. St. Rep. 194; Emerson v. Clark, 2 Scam. (Ill.) 489; Lake Erie, etc., Co. v. Mackey, 53 Ohio St. 370, 41 N.E. 980, 29 L. R. A. 757, 53 Am. St. Rep. 641; Zeis v. Passwater, 142 Ind. 375, 41 N.E. 796; Henry v. Thomas, 118 Ind. 23, 20 N.E. 519; Indiana, B., etc., Co. v. Quick, 109 Ind. 295, 9 N.E. 788, 925; Cincinnati, etc., Co. v. Stahle, 37 Ind.App. 539, 76 N.E. 551, 77 N.E. 363; Weaver v. Neal, 61 W.Va. 57, 55 S.E. 909, 123 Am. St. Rep. 972; Kecoughton Lodge v. Steiner, 106 Va. 589, 56 S.E. 569, 10 Ann. Cas. 256; Jeremy Imp. Co. v. Commonwealth, 106 Va. 482, 56 S.E. 224; Hightower v. Flanders, 69 Ga. 772.

The motion indicates the pages of the transcript of the record where the deed now sought to be made a part thereof is referred to and described in the bill of exceptions. This reference is as follows:

'Malcolm McClellan. City of Jacksonville, Duval county, Florida. I was secretary and treasurer and director of the Florida Land Investment Company in November, 1913. (Witness is handed a deed which has been identified as Exhibit 3, marked for identification, the deed being from Frank T. Nooney and wife to the Florida Land Investment Company, dated the 8th day of November, 1913.) Yes, sir, it was given to the Florida Land Investment Company by the grantor. This deed is part of the subject-matter of the answer of the adverse title, I mean of the answer of the Florida Land Investment Company in the foreclosure suit of F. O. Williams v. Florida Land Investment Company. It is the only deed referred to in that answer, as I remember the answer. This is the deed referred to in the original answer and also in the amended answer in the suit of F. O. Williams v. Florida Land Investment Company; the deed from Frank T. Nooney and wife to the Florida Land Investment Company. That is the original answer. (Said deed, marked for identification Exhibit 3, offered in evidence.)

'(Said document was received and filed in evidence and marked Exhibit 9.) It is the mortgage which was filed in evidence in the case of F. O. Williams v. Florida Land Investment Company is the mortgage that was given by me as a representative of the Florida Land Investment Company, to the grantors in the deed offered in evidence and marked Exhibit No. 9, at the time that deed was delivered by the grantors to Mr. Frank T. Nooney and wife. Oh, yes, that deed and this mortgage are all one and the same transaction. It is all one and the same transaction. Yes, sir; I handled that transaction myself. No, sir; at the time that deed was received, I had not examined or had examined for the Florida Land Investment Company, the title to that property. I did, after the receipt of that deed call the attention of the grantors to the fact that there were certain defects in the title at the time that the warranty deed was made.'

It will be observed that the document to which reference is made here is referred to as 'Exhibit 3' in one paragraph and 'Exhibit 9' in the other paragraph. From the context it might be inferred that this deed had been previous to this time during the progress of the trial marked 'Exhibit 3' for identification, and that subsequently, when offered in evidence, this designation was changed to 'Exhibit 9.' This, however, is not clear, and the reference to it in the last line of the first quoted paragraph as 'Exhibit 3 offered in evidence' and in the first line of the second paragraph as 'filed in...