Kidd v. City of Jacksonville

• Decision Date: 06 May 1930
• Parties: KIDD et al. v. CITY OF JACKSONVILLE, to Use and Benefit of HIRSCH LUMBER CO.
• Court: Florida Supreme Court

128 So. 31

99 Fla. 1023

KIDD et al. v. CITY OF JACKSONVILLE, to Use and Benefit of HIRSCH LUMBER CO.

Florida Supreme Court

May 6, 1930

En Banc.

Error to Circuit Court, Duval County; De Witt T. Gray, Judge.

Action by the City of Jacksonville, for the use and benefit of the Hirsch Lumber Company, against J. A. Kidd and another. Judgment for plaintiff, and defendants bring error. On plaintiff's motion to strike from transcript of record the bill of exceptions in its entirety, that portion of bill of exceptions consisting of testimony of witnesses, and that portion purporting to consist of certain documentary exhibits.

Denied in part, and granted in part.

See also, 97 Fla. 297, 120 So. 556.

COUNSEL

Giles J. Patterson, of Jacksonville, for plaintiffs in error.

Marks Marks, Holt, Gray & Yates, of Jacksonville, for defendant in error.

OPINION

WHITFIELD P.J.

A writ of error was taken to a judgment for the plaintiff in an action on a bond. For a previous writ of error, see Kidd v. City of Jacksonville, 91 Fla. 380, 107 So. 677.

The defendant in error moves to strike from the transcript of the record (1) the bill of exceptions in its entirety; (2) that portion of the bill of exceptions consisting of testimony of witnesses; (3) 'that portion of the record purporting to consist of copies of documentary exhibits numbered respectively 1 to 14, both inclusive, except exhibit No. 5, which last mentioned exhibit the trial court has certified to the Supreme Court in its original form.'

The exhibits referred to are copied into the transcript of the recordsucceeding the certificate of the trial judge that authenticated the bill of exceptions. The exhibits so copied into the transcript, following the certificate of the trial judge authenticating the bill of exceptions, are not so referred to in the bill of exceptions or in the authenticating certificate of the trial judge as to sufficiently identify the exhibits or to make them a part of the bill of exceptions, therefore they must be stricken. Florida L. I. Co. v. Williams, 83 Fla. 251, 91 So 177; Florida L. I. Co. v. Williams, 84 Fla. 157, 92 So. 876, 26 A. L. R. 171. Such exhibits have not been transmitted to the appellate court under section 1, c. 9168, Acts 1923, section 4626, Compiled General Laws 1927. See, also, section 2, chapter 12019, Acts 1927, section 4611, Compiled General Laws 1927.

Before the expiration of the time allowed for presenting a proposed bill of exceptions, counsel for the plaintiff in error presented to the trial judge a transcript of the testimony of the witnesses in the cause. There is copied into the transcript, but not in the bill of exceptions (see section 3, c. 12019, Acts 1927, section 4612 Compiled General Laws 1927), an order made by the trial judge on the day the proposed bill of exceptions was presented to him, allowing himself seven days within which to settle the bill of exceptions. If this order may be considered here, it is not material, since the judge had authority to settle and authenticate the bill of exceptions at his reasonable convenience after it was duly presented within the time allowed by the special order made in the cause during the term of the court. Bossom v. Gillman, 70 Fla. 310, 70 So. 364.

The portion of the proposed bill of exceptions that is included in the transcript, preceding the authenticating certificate of the trial judge, constitutes the authenticated bill of exceptions. The certificate of the trial judge states that the defendant did, 'within the time allowed by special order of the Court for presenting the...