Gibson v. Lehde

CourtUnited States State Supreme Court of Florida
Writing for the CourtPER CURIAM.
Citation128 Fla. 703,175 So. 726
Decision Date28 June 1937
PartiesGIBSON v. LEHDE.

175 So. 726

128 Fla. 703

GIBSON
v.
LEHDE.

Florida Supreme Court

June 28, 1937


Rehearing Denied July 29, 1937.

Error to Circuit Court, Hillsborough County; Harry N. Sandler, Judge.

Action by Pauline Lehde, a widow, against James B. Gibson, Jr. To review an order granting the plaintiff a new trial, defendant brings error.

Affirmed.

COUNSEL [128 Fla. 704] Samuel Feinberg, of Tampa, and Edldrige Cutts, of Lakeland, for plaintiff in error.

Peyton T. Jordan and Altman & Cooper, all of Tampa, for defendant in error.

OPINION

PER CURIAM.

The writ of error brings for review an order granting a new trial.

The order granting new trial was as follows:

'It is thereupon ordered and adjudged that the plaintiff's motion for a new trial be and is hereby granted and the said verdict set aside, and the plaintiff is granted a new trial for the reasons, to-wit
'1. That the evidence does not sustain the verdict.
'(a) There is no testimony to show that the plaintiff's attorney had express authority to make the agreement claimed by the defendant.
'(b) There is no testimony to show that the plaintiff ratified the agreement claimed to have been made by the defendant with the plaintiff's attorney.
'2. That the ratification relied upon by the defendant at the trial of the said cause was not specially pleaded.
'3. That it was error to have admitted in evidence the testimony offered by the defendant relative to his general reputation for truth and veracity.
'The defendant's motion to amend judgment nunc pro tunc and motion to strike the name of Peyton T. Jordan as attorney for the plaintiff be and are each denied.'

If either ground on which order granting new trial is based finds substantial support in the record, the same will not be disturbed on appeal. An order granting a new trial will not be reversed where no abuse of sound discretion in [175 So. 727] granting same is made to appear. See Zigler v. Erler [128 Fla. 705] Corporation, 102 Fla. 981, 136 So. 718. This rule is applicable where there is a conflict in evidence. Woods v. Atlantic Coast Line Ry. Co., 100 Fla. 909, 130 So. 601.

The record at most shows only an agreement for accord and satisfaction of the notes sued on, which alleged agreement was without consideration, contemplated the conveyance of real estate, and was not in writing, and for these reasons was not enforceable in law or equity.

It therefore...

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4 practice notes
  • Kight v. American Eagle Fire Ins. Co. of New York
    • United States
    • United States State Supreme Court of Florida
    • March 11, 1938
    ...support in the record, the said order granting a new trial will not be disturbed on writ of error to this court. See Gibson v. Lehde, 128 Fla. 703, 175 So. 726. Likewise it has been held, even where there is a conflict in the evidence, the order granting a new trial will not be disturbed in......
  • Florida Coastal Theatres v. Belflower
    • United States
    • United States State Supreme Court of Florida
    • November 21, 1947
    ...Const. Co. v. Monroe County, 107 Fla. 648, 146 So. 209; Miami v. Bopp, 117 Fla. 532, 158 So. 89, 97 A.L.R. 1035; Gibson v. Lehde, 128 Fla. 703, 175 So. 726. For the reasons stated, the order granting new trial is affirmed. So ordered. TERRELL, ADAMS, SEBRING, and BARNS, JJ., concur. THOMAS,......
  • State Ex Rel. Mcguire v. Mayo
    • United States
    • United States State Supreme Court of Florida
    • June 28, 1937
    ...should not condone the misprision by rejecting as surplusage a definite part of a sentence affecting fifteen years of a man's liberty. [128 Fla. 703] On Petition for Rehearing. PER CURIAM. It must be remembered that this is a collateral attack upon a judgment rendered six years ago. If the ......
  • Bosworth v. State
    • United States
    • United States State Supreme Court of Florida
    • July 13, 1937
    ...sexual intercourse with an unmarried female under 18 years of age and of previous chaste character, and he brings error. Affirmed. COUNSEL [175 So. 726] [128 Fla. 793] Sam B. Wilson, of Jacksonville, for plaintiff in error. Cary D. Landis, Atty. Gen., and Roy Campbell and James B. Watson, A......
4 cases
  • Kight v. American Eagle Fire Ins. Co. of New York
    • United States
    • United States State Supreme Court of Florida
    • March 11, 1938
    ...support in the record, the said order granting a new trial will not be disturbed on writ of error to this court. See Gibson v. Lehde, 128 Fla. 703, 175 So. 726. Likewise it has been held, even where there is a conflict in the evidence, the order granting a new trial will not be disturbed in......
  • Florida Coastal Theatres v. Belflower
    • United States
    • United States State Supreme Court of Florida
    • November 21, 1947
    ...Const. Co. v. Monroe County, 107 Fla. 648, 146 So. 209; Miami v. Bopp, 117 Fla. 532, 158 So. 89, 97 A.L.R. 1035; Gibson v. Lehde, 128 Fla. 703, 175 So. 726. For the reasons stated, the order granting new trial is affirmed. So ordered. TERRELL, ADAMS, SEBRING, and BARNS, JJ., concur. THOMAS,......
  • State Ex Rel. Mcguire v. Mayo
    • United States
    • United States State Supreme Court of Florida
    • June 28, 1937
    ...should not condone the misprision by rejecting as surplusage a definite part of a sentence affecting fifteen years of a man's liberty. [128 Fla. 703] On Petition for Rehearing. PER CURIAM. It must be remembered that this is a collateral attack upon a judgment rendered six years ago. If the ......
  • Bosworth v. State
    • United States
    • United States State Supreme Court of Florida
    • July 13, 1937
    ...sexual intercourse with an unmarried female under 18 years of age and of previous chaste character, and he brings error. Affirmed. COUNSEL [175 So. 726] [128 Fla. 793] Sam B. Wilson, of Jacksonville, for plaintiff in error. Cary D. Landis, Atty. Gen., and Roy Campbell and James B. Watson, A......

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