Hall v. Florida State Drainage Land Co.

• Decision Date: 28 March 1925
• Citation: 103 So. 828,89 Fla. 312
• Parties: HALL v. FLORIDA STATE DRAINAGE LAND CO.
• Court: Florida Supreme Court

103 So. 828

89 Fla. 312

HALL v. FLORIDA STATE DRAINAGE LAND CO.

Florida Supreme Court

March 28, 1925

En banc.

Error to Circuit Court, Palm Beach County; C. E. Chillingworth Judge.

Action by the Florida State Drainage Land Company against M. M Hell. Judgment for plaintiff, and defendant brings error.

Reversed.

Syllabus by the Court

SYLLABUS

Where application for continuance is addressed to trial court's discretion, affidavits or parol evidence to oppose motion are admissible. In jurisdictions where the application for a continuance is addressed to the discretion of the trial court, the introduction of affidavits or parol evidence in opposition to the motion is permitted.

In deciding upon sufficiency of motion and affidavit for continuance, no presumption is indulged in favor of applicant. In deciding upon the sufficiency of a motion and affidavit for continuance, no presumption favorable to the applicant is to be indulged.

Application for continuance is addressed to sound discretion of trial court; determination of trial court on sufficiency of application for continuance will not be disturbed on appeal except for abuse of discretion. In this state, an application for the continuance of a case is always addressed to the sound discretion of the trial court, and must be left to the tribunal which has the parties before it, and who must determine from a variety of circumstances occurring in its presence whether such applications are made in good faith. The determination of the trial court of the sufficiency of the application will not be disturbed, unless there has been palpable abuse of such discretion by the trial court, to the detriment of the party applying for the continuance, clearly and affirmatively shown by the transcript of the record.

Deed to swamp lands by trustees of internal improvement fund is prima facie evidence of title in grantee. In actions involving the title to lands originally patented by the United States to the state of Florida under authority of the so-called Swamp Land Acts, and subsequently deeded to individuals by the trustees of the internal improvement fund acting under the statutory powers vested in said trustees, such deed from said trustees is of itself prima facie evidence of title in the grantee, and such grantee will be entitled to recover possession of the land in the absence of proof of a former superior grant, or other evidence of superior title, or right of possession overcoming the title conveyed by said trustees.

Pleas of not guilty and denying possession of land sued for may be filed together in same action; plea denying possession of land sued for puts plaintiff to proof of defendant's possession. In actions in ejectment, the plea of not guilty and a plea denying possession of the lands sued for, are not inconsistent pleas, and may be filed together in the same action. The latter plea, when filed, puts the plaintiff to proof of defendant's possession.

Evidence held insufficient to show prima facie possession by defendant of lands sued for. The evidence in this case fails to show prima facie, the possession by the defendant of the lands described in the declaration.

Facts should be shown which in law constitute possession. It is extremely doubtful whether testimony in haec verba that a party is in possession of lands is of any weight, possession being often a matter of opinion. The facts should be shown which, in law, constitute possession.

COUNSEL

Gramling & Clarkson, of Miami, for plaintiff in error.

H. L. Bussey, of West Palm Beach, for defendant in error.

OPINION

STRUM J.

This is an action in ejectment, the praecipe for summons in which was filed on December 13, 1916. The declaration, filed on January 1, 1917, alleges in substance that the defendant is in possession of 'the west half of the northwest quarter of section two (2), township forty-four (44) south, range thirty-five (35) east,' to which said land plaintiff claims title. On February 5, 1917, the defendant filed a plea of 'not guilty,' and later filed a further plea 'that he (the defendant) is not now and never has been in possession of the west half (W. 1/2) of the northwest quarter (N.W. 1/4) of section two (2), township forty-four (44) south, range thirty-five (35) east, as in said declaration alleged.' As far as the transcript discloses, no further proceedings were had in the case until September 14, 1923, when a stipulation was entered into between the attorneys for the respective parties 'that the above-entitled cause will be tried at the next term of the circuit court, to wit, the second Tuesday in February, A. D. 1924.' In addition to this stipulation, on January 10, 1924, the defendant's attorney served upon the attorney for the plaintiff a further notice that the 'defendant will insist upon a trial of such cause during the February term of the circuit court, A. D. 1924.'

The case was called for trial by the circuit court on February 23, 1924, during said term, at which time the defendant presented a motion for a continuance to the next term, the affidavit in support of which sets out, in substance, that the defendant and his principal witnesses are old and feeble, all of them residing at distant points in the county and elsewhere, and unable by reason of their health, age, and certain abnormal flood conditions, then obtaining around Lake Okeechobee, to travel to the county seat, by reason whereof it would be necessary to take their depositions. The affidavit further sets out the facts to which the defendant expected said witnesses to testify, and contains substantially all remaining essentials prescribed therefor by the familor rules laid down in cases previously adjudicated. With leave of the trial court, the plaintiff, 'to enlighten the court upon the truth of the facts set forth in said motion for continuance' produced several witnesses who testified at length in rebuttal, denying many of the material facts contained in the affidavit of the defendant. The court denied the motion for continuance.

Thereupon, the attorney, who had represented the defendant in the presentation of the motion, withdrew from any further connection with the case, and the case proceeded to trial, neither the defendant nor any attorney representing him being present, and no evidence being offered on behalf of the defendant.

At the conclusion of the evidence, the court directed the jury to find a verdict for the plaintiff, consequent upon which final judgment was entered.

The defendant, plaintiff in error here, assigns as error the action of the trial court in admitting the oral testimony of witnesses in rebuttal of defendant's affidavit supporting the latter's motion for continuance; the denial of defendant's motion for continuance; and the action of the court directing a verdict for the plaintiff. The plaintiff in error contends, in connection with the latter assignment, that the defendant in error failed to trace his title back to its ultimate source or to a grantor in actual possession, and that the defendant in error failed to prove that the plaintiff in error (defendant below) was in possession of the lands described in the declaration.

In jurisdictions where the application for a continuance is addressed to the discretion of the trial court, the introduction of affidavits or parol evidence in opposition to the motion is permitted. In passing upon a motion for continuance, the trial judge is vested with a broad discretion. In order that such discretion may be soundly and justly exercised, there must also exist the power for that judge, within reasonable limits, to further inform and enlighten himself, if necessary, upon the matters presented by the movant in support of the motion for continuance. In deciding upon the sufficiency of a motion and affidavit for continuance, no presumption favorable to the applicant is to be indulged. Bolles v. Carson, 73 Fla. 504, 74 So. 509; Reynolds v. Smith, 49 Fla. 217, 38 So. 903. Of necessity, therefore, the trial judge cannot be confined to the four corners of the motion and affidavits presented by the applicant. This court has held that the sheriff's return on process may be looked to in order to ascertain the correctness of a statement in the affidavit for continuance concerning service of the process. Dansey v. State, 23 Fla. 316, 2 So. 692. While there is some conflict in the earlier authorities, the weight of authority now sanctions the admission of counter affidavits and oral evidence upon the question of lack of diligence in procuring the testimony of an absent witness, or want of good faith in making the application, or improbability that the proposed testimony can be obtained at the time to which it is proposed to postpone the trial, or at all, or to contradict an averment that an absent witness is sick, and other similar matters strictly pertaining to the application. Scott v. Cleveland, 110 Ark. 9, 160 S.W. 868; George v. Swafford, 75 Iowa, 491, 39 N.W. 804; Cushenberry v. McMurray, 27 Kan. 328; Webb v. Wegley, 19 N.D. 606, 125 N.W. 562; 6 R. C. L. 566. There was therefore no error in admitting the rebuttal testimony hereinabove mentioned.

In Bolles v. Carson, 73 Fla. 505, 74 So. 509, and in many other cases, this court has held that an application for the continuance of a cause is always addressed to the sound...