Investment Co. v. Trueman
| Decision Date | 05 February 1912 |
| Citation | 63 Fla. 184,57 So. 663 |
| Parties | INVESTMENT CO. v. TRUEMAN. |
| Court | Florida Supreme Court |
Error to Circuit Court, Alachua County; J. T. Wills, Judge.
Action by J. Albert F. Trueman, for the use of Thornton B Stringfellow, against the Investment Company. Judgment for plaintiff, and defendant brings error. Affirmed.
Syllabus by the Court
Although as printed in the General Statutes of 1906, section 1969 relating to discovery in ejectment, refers to sections 1971 and 1972 of such statutes, which have no relevancy whatever to the subject-matter of such section 1969, in the copy of such General Statutes on file in the office of the Secretary of State, which was the one actually adopted by the Legislature, such section 1969 refers to sections 1534 and 1535, which regulate the procedure in regard to interrogatories, and provide that the answers given thereto 'shall be evidence against, but not for, the party making them.' The section as it appears in the copy filed in the office of the Secretary of State, and not as it appears in the printed and published volume, must govern.
Where a defendant in an action of ejectment has, without objection filed answers to interrogatories propounded under the statutes, seeking a disclosure of the title upon which such defendant relies, which answers are made by the statute evidence against such party, and the defendant waits until the case is actually being tried, and then seeks by motion to amend one of such answers by making a material change therein, no reason or excuse being offered for the delay such motion is properly denied.
An objection to the admission in evidence of a certified copy of a deed on the ground that such deed was 'not acknowledged as required by law, in that acknowledgment thereto did not recite that the grantors in such conveyance were known to the officer taking said acknowledgment.' is properly overruled, when it appears that the statutes in force at the time such deed was acknowledged contained no such requirement.
A substantial compliance with the requirements of statutes governing the acknowledgment or proof of the execution of instruments for the purpose of having them recorded is sufficient.
Where the plaintiff and defendant in an action of ejectment claim through a common source of title, errors committed in allowing improper evidence of such common title are harmless.
Where the evidence fully makes out the plaintiff's case, and there is no evidence to contradict or rebut it, a peremptory charge for a verdict in the plaintiff's favor is proper.
COUNSEL Robt. E. Davis, for plaintiff in error.
W. S. Broome, for defendant in error.
This is an action of ejectment instituted by the defendant in error against the plaintiff in error for the recovery of the possession of certain described real estate. No point is made on the pleadings, the declaration being in the usual form, to which the defendant filed a plea of not guilty. A trial was had before a jury, and, at the close thereof, upon motion of the plaintiff, the trial judge directed the jury to return a verdict in favor of the plaintiff, which was done and judgment entered accordingly. This judgment the defendant seeks to have tested here by writ of error. Nineteen errors are assigned, several of which are expressly abandoned. We shall discuss such of those that are argued which we think merit treatment.
After the filing of the declaration, the plaintiff filed certain interrogatories to an officer of the defendant corporation, thereby seeking a disclosure of its 'title and every link thereof,' as is provided by section 1969 of the General Statutes of 1906. The defendant, after the filing of its plea, propounded like interrogatories to the plaintiff. Both the officer of the defendant corporation to whom such interrogatories were addressed, and the plaintiff answered all of the interrogatories so respectively propounded, without objection. From such answers of the respective parties it appeared that the plaintiff and defendant claimed the land in dispute through a common source of title. The plaintiff offered in evidence the interrogatories addressed to one of the officers of the defendant corporation together with his replies thereto, to the introduction of which the defendant objected upon certain grounds, which were overruled, and one of the errors assigned is predicated upon such ruling, but it is expressly abandoned, and we think properly so, as the grounds of objection urged were without merit. Later on in the trial, the defendant made the following motion:
'Thereupon counsel for the defendant moves to strike the interrogatories propounded by counsel for plaintiff to the defendant, through B. F. Williamson as vice president and general manager, and for leave to withdraw the answers to said interrogatories upon the ground that there is no authority under the laws of Florida for the issuance of said interrogatories, but that the same are without legal force and effect.'
The denial of this motion is assigned as error. Section 1969 of the General Statutes of 1906 reads as follows:
Upon turning to sections 1971 and 1972, referred to therein, it is obvious that they have no relevancy whatever to the subject-matter of section 1969. Unfortunately for the contention of the defendant, upon examination of the copy of the General Statutes on file in the office of the Secretary of State, which was the one actually enacted and adopted by the Legislature, signed by the President of the Senate and Speaker of the House, and approved by the Governor, we find that the numbers of the sections referred to in the printed section are typographical errors. In the section in such copy so on file reference is made to the proper sections relating to such subject-matter, which appear in such General Statutes as sections 1534 and 1535, which regulate the procedure in regard to interrogatories and provide that the answers given thereto 'shall be evidence against, but not for, the party making them.' The section as it appears in the copy filed in the office of the Secretary of State, and not as it appears in the printed and published volume, must govern. Exparte parte Sam Bush, 48 Fla. 69, 37 So. 177, and Strobhar v. State, 55 Fla. 167, 47 So. 4. Section 1969, which we have copied above, expressly authorizes either party to an action in ejectment to avail himself of the procedure provided for in sections 1534 and 1535, erroneously printed as 1971 and 1972. It necessarily follows that the ruling of the trial judge was proper; therefore this assignment has not been sustained.
Later on in the trial the defendant filed a motion for the amendment of the answer to one of the interrogatories to the granting of which the plaintiff objected upon certain specified grounds. Such motion was denied, and this ruling is assigned as error. We deem it unnecessary to set out either the motion or the grounds of objection interposed thereto. As we have already said, the officer of the defendant company had answered such interrogatory without objection. He was presumed to know the facts concerning which he was interrogated and undertook to answer, and he had the privilege of selecting his own language in which to couch his reply. We would further call...
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