Hoodless v. Jernigan

• Decision Date: 24 April 1906
• Citation: 41 So. 194,51 Fla. 211
• Parties: HOODLESS v. JERNIGAN.
• Court: Florida Supreme Court

41 So. 194

51 Fla. 211

HOODLESS v. JERNIGAN.

Florida Supreme Court, Division A.

April 24, 1906

Error to Circuit Court, Santa Rosa County; Francis B. Carter Judge.

Action by W. L. Jernigan against John Hoodless. There was judgment for plaintiff, and defendant brings error. Affirmed.

Syllabus by the Court

SYLLABUS

The duty devolves upon the plaintiff in error or his counsel upon resort to an appellate court to make the errors complained of clearly to appear, if they in truth exist, by a proper record of all the facts and circumstances pertinent to, and connected with such alleged error, and in exhibiting them the duty likewise devolves upon him to exhibit all such facts and circumstances fairly and truly.

The rules contemplate that in making up bills of exceptions based upon the admission or rejection of evidence, where the evidence admitted or rejected, forming the subject of the exception, does not in and of itself show upon its face its pertinency and relevancy to the issue being tried, and there is other evidence either admitted, or proffered and rejected that will connect it with the case and show its relevance or pertinence, such other connecting evidence should be set forth in the bill of exceptions so as to enable the appellate court fully and fairly to pass upon the propriety or impropriety of the admission or rejection thereof.

The principles enunciated in the former opinion in this case ( Hoodless v. Jernigan, 35 So. 656, 46 Fla. 213) have become the law of this case, and cannot be reviewed or reversed upon this writ of error.

Objections interposed to the introduction in evidence of written instruments which do not appear upon the face thereof, but would have to be proved by extraneous evidence should be overruled, unless such extraneous evidence has been previously introduced.

In both civil and criminal cases the trial court is authorized to regulate the order of the introduction of evidence, and its discretion in this matter will only be interfered with by an appellate court when a clear abuse thereof is made to appear.

A motion to strike out from the evidence several documents or instruments as an entirety should be denied if any of said instruments was properly admitted.

An appellate court will not 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.

Where the bill of exceptions fails to show at what stage of the proofs certain evidence was offered or for what purpose and the grounds upon which the introduction of such evidence was objected to and the grounds upon which the same was excluded we cannot presume error in the exclusion of such evidence every presumption being in favor of the correctness of the rulings made by the trial judge.

When the bill of exceptions does not show the ruling of the court upon a motion for a new trial or any exception to such ruling, an appellate court cannot consider the merits of such motion or any assignment of error based thereon.

An appellate court, equally with suitors, is bound by its rules, and they must be construed as statutes would be construed.

COUNSEL Amos & West, for plaintiff in error.

Daniel Campbell & Son, for defendant in error.

OPINION

SHACKLEFORD C.J.

The defendant in error as plaintiff brought an action of ejectment against the plaintiff in error as defendant in the circuit court for Santa Rosa county to recover the possession of a certain described tract of land, and for mesne profits. A trial was had at the Spring term, 1905, of said court, which resulted in a verdict and judgment for the plaintiff, to which judgment the defendant took a writ of error returnable to the present term.

This is the second time this case has been brought here by the defendant. See Hoodless v. Jernigan, 46 Fla. 213, 35 So. 656. That judgment was reversed for certain errors and irregularities found in the verdict and judgment.

Twenty-one errors are assigned, some of which, however, are expressly abandoned, and others are not argued. In his brief the plaintiff in error says that 'the assignments of error numbered from 1 to 5 raise the same questions, practically, as those numbered from 9 to 14, inclusive, and will be considered together.' We shall follow his example in so treating them, so far as we can do so, and at the same time make this opinion clear and intelligible. However, before taking up these assignments it may be well to call attention to the fact that the transcript contains both an ordinary and an evidentiary bill of exceptions, which were made up and presented to the trial judge prior to the 15th day of May, 1905, on which date the new rules adopted by this court on the 2d day of March, 1905, went into effect, therefore, the new rules have no applicability in the instant case. The sixth, seventh and eighth headnotes of the former opinion rendered by us in this case (Hoodless v. Jernigan, 46 Fla. 213, 35 So. 656) will prove instructive. They are as follows:

'(6) The evidentiary and ordinary bills of exceptions must be made up separate and distinct from each other, and each must be sufficient and complete in itself to review the errors designed to be presented, and a reference by the court from one to the other is not permissible, to aid defects in either.

'(7) The duty devolves upon the plaintiff in error or his counsel upon resort to an appellate court to make the errors complained of clearly to appear, if they in truth exist, by a proper record of all the facts and circumstances pertinent to, and connected with such alleged error, and in exhibiting them the duty likewise devolves upon him to exhibit all such facts and circumstances fairly and truly.

'(8) The rules contemplate that in making up bills of exceptions based upon the admission or rejection of evidence, where the evidence admitted or rejected, forming the subject of the exception, does not in and of itself show upon its face its pertinency and relevancy to the issue being tried, and there is other evidence either admitted, or proffered and rejected, that will connect it with the case and show its relevance or pertinence, such other connecting evidence should be set forth in the bill of exceptions so as to enable the appellate court fully and fairly to pass upon the propriety or impropriety of the admission or rejection thereof.'

Also see the authorities cited in that opinion, and Daytona Bridge Company v. Bond, 47 Fla. 136, 36 So. 445; Florida Land Rock Phosphate Co. v. Anderson (Fla.) 39 So. 392. The principles enunciated in the headnotes which we have just set forth, as well as those found in our former opinion generally, have become the law of this case. See Anderson v. Northrop, 44 Fla. 472, 33 So. 419; Louisville & Nashville R. R. Co. v. Jones (Fla.) 39 So. 485.

The first five assignments are based upon rulings of the trial court admitting in evidence, over the defendant's objections, certain specified written instruments, which we deem it unnecessary to describe in detail or to set forth at length the objections interposed thereto. Generally, it will suffice to repeat what we said in our former opinion, 46 Fla 213, text 220, 35 So. 656, text 659: 'As we have seen, being confined to the ordinary bill of exceptions, we can consider only what it presents. We find that it fails to state at what stage of the proofs the evidence was offered and admitted over defendant's objections, which forms the basis of this assignment. Neither are we informed for what purpose the same was offered.' For all practical purposes this language is applicable to all of the first five assignments. This being true, unless the grounds of objection to the introduction in evidence of these several instruments are apparent on the face thereof, we must hold that no error was committed in...