Hoopes v. Crane
| Citation | 47 So. 992,56 Fla. 395 |
| Court | United States State Supreme Court of Florida |
| Decision Date | 08 December 1908 |
| Parties | HOOPES et al. v. CRANE et al. |
Headnotes Filed December 19, 1908.
Error to Circuit Court, Marion County; William S. Bullock, Judge.
Assumpsit of William Hoopes and others, copartners, against John Crane and another, copartners. Judgment for defendants, and plaintiffs bring error. Affirmed.
Syllabus by the Court
The practice of assigning an unnecessarily large number of errors is disapproved. That any one of the circuit judges in this state would commit 61 separate and distinct errors in the trial of a cause is rather a violent presumption, and, even if such should be the case, it would not be necessary to assign every one of such errors in order to secure a reversal of the judgment.
The copy of the cause of action attached to a declaration, in compliance with section 1449 of the General Statutes of 1906 and rule 14 of circuit court rules in common-law actions (37 South. vii), forms no part of the declaration, unless expressly made a part thereof by apt words, and cannot be reached by demurrer where this has not been done. In neither case can grounds of a demurrer be directed solely against the cause of action.
The trial court is not required to specify the particular grounds of the demurrer upon which the ruling thereon is founded. It is sufficient simply to sustain or overrule the demurrer.
A correct ruling of the trial court will not be disturbed because of erroneous or wrong reasons which may have been given therefor, as it is with the ruling itself, and not with the reasons therefor, with which an appellate court is concerned.
A declaration in an action at law should allege distinctly and clearly every fact that is essential to the plaintiff's right of action, and the cause of action attached to the declaration cannot be resorted to or used on demurrer to supply essential allegations of fact omitted from the declaration.
Where the allegations of a declaration containing only one count are repugnant to and inconsistent with each other, such allegations neutralize each other, and the declaration will be held bad on general demurrer, provided such repugnancy and inconsistency relate to matters of substance, and not of form only. This principle is also applicable to a declaration containing more than one count when a general demurrer is interposed to certain specified counts. In taking up for consideration any one of such counts, if it should be found to contain in itself repugnant and inconsistent allegations in matters of substance, it will be held bad; but the rule is confined to single counts and is not applicable to two or more counts, one of which may contain allegations which are inconsistent with and repugnant to allegations in another count.
If a count in a declaration is so faulty and defective as to practically fail to state a cause of action, no error is committed in sustaining a demurrer thereto, even though such count may also be open to attack by a proper motion under section 1433 of the General Statutes of 1906.
In passing upon an assignment based upon the exclusion of evidence, if the action of the trial court in excluding such evidence be found to be correct, it does not matter that erroneous reasons may have been given for its exclusion, as it is with the ruling, and not with the reasons given therefor, that an appellate court is concerned.
Objections are properly sustained to a question propounded to a witness which seeks to elicit testimony which would be violative of the familiar rule that parol evidence is not admissible to vary, alter, or contradict a written instrument.
No error is committed by the trial court in directing a verdict for the defendant after the conclusion of the testimony adduced by the plaintiffs, on motion of the defendant especially when no objection or protest was made by the defendant to such direction, no request was made for the privilege or right of making an argument to the jury, no exception was taken or noted to such direction at the time but only in the motion for a new trial, and, assuming as true all the evidence adduced by the plaintiffs which was admitted, and viewing it in the most favorable light for the plaintiffs, a verdict could not have been properly rendered in their favor.
H. L. Anderson and H. M. Hamption, for plaintiffs in error.
Axtell & Rinehart, E. J. L'Engle, and C. L. Sistrunk, for defendants in error.
This is an action of assumpsit instituted by the plaintiffs in error against the defendants in error in the circuit court for Marion county. Trial was had before a jury, resulting in a verdict for the defendants, upon which judgment was entered which plaintiffs seek to have reviewed here by writ of error. The plaintiffs have assigned 61 errors, covering 15 typewritten pages; but we are told by the counsel for plaintiffs in their brief that: 'Only the first, second, third, fourth, fifth, sixth, thirtieth, thirty-first, thirty-second, thirty-third, sixtieth, and sixty-first will be argued; the remaining assignments being covered by the fourth assignment.' It being further stated by such counsel that: 'Desiring to lessen the labors of this court by avoiding useless repetitions, only the fourth assignment will be argued in so far as these assignments are concerned, contenting ourselves with the fact that the assignments not specifically argued are fairly embraced in this assignment.'
We have several times had occasion to express our disapproval of the practice of assigning an unnecessarily large number of errors. See Seaboard Air Line Ry. v. Scarborough, 52 Fla. 425, text 432, 42 So. 706, text 708, and Atlantic Coast Line R. Co. v. Crosby, 53 Fla. 400, text 476, 43 So. 318, text 341. That any one of the circuit judges in this state would commit 61 separate and distinct errors in the trial of a cause is rather a violent presumption, to say the least of it. Even if such should be the case, it would hardly be necessary to assign every one of such errors in order to secure a reversal from this court. Robert Louis Stevenson says somewhere that to omit is the one art in literature, stating that, if he knew how to omit, he should ask no other knowledge. It might be well for this to be borne in mind by members of the bar in preparing their assignments of errors and their briefs. If it should be replied that members of appellate courts should also heed the admonition in the preparation of their opinions, no one would assent more readily thereto than the writer hereof, who must confess to having erred himself along that line.
The first assignment is based upon the sustaining of the demurrer of the defendants to the first, second, and third counts of the plaintiffs' original declaration. As the declaration was subsequently amended, and the matters contained in such counts were set forth more fully and completely in the amended declaration, to which a demurrer was also sustained, which ruling forms the basis for the second assignment, it seems advisable to first take up the second assignment for consideration. If we should find that the demurrer was properly sustained to such counts in the amended declaration, it would become unnecessary to consider the first assignment.
Such amended declaration is as follows:
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