Louisville & N.R. Co. v. Wade

• Decision Date: 21 February 1905
• Citation: 38 So. 49,49 Fla. 179
• Court: Florida Supreme Court
• Parties: LOUISVILLE & N. R. CO. v. WADE.

38 So. 49

49 Fla. 179

LOUISVILLE & N. R. CO. v. WADE.

Florida Supreme Court, Division A.

February 21, 1905

Error to Circuit Court, Holmes County; Charles B. Parkhill, Judge.

Action by Amanda Wade against the Louisville & Nashville Railroad Company. Verdict for defendant. From an order granting a new trial, defendant brings error. Affirmed.

Syllabus by the Court

SYLLABUS

1. When a motion for a new trial is granted by the circuit court, the presumption is that it was properly granted.

2. Where a motion for new trial in the circuit court is made upon several grounds, and the motion is granted generally and it nowhere appears in the transcript upon which of the grounds of the motion the order was based, the order granting the new trial will not be reversed unless it appears that the order was not justified by any of the grounds of the motion.

3. An order granting a new trial which does not state any particular ground on which it was granted will not be disturbed when some of the grounds of the motion as made in the circuit court are not properly presented for review.

COUNSEL

[LOUISVILLE & NR CO V WADE 38 So. 49(1905)] Blount & Blount, for plaintiff in error.

D. L McKinnon, for defendant in error.

OPINION

WHITFIELD C.J.

A former writ of error in this case was disposed of in Louisville & N. R. Co. v. Wade (Fla.) 35 So. 863. The present writ of error was taken from an order granting a new trial to the plaintiff after a verdict had been rendered for the defendant by the direction of the court.

The motion for a new trial, as made, is as follows: 'The plaintiff moves the court to set aside the verdict and grant a new trial on the following grounds, to wit: (1) The court erred in refusing to permit the witnesses to answer the questions propounded by plaintiff, as excepted to on the trial by plaintiff, and permitting the witnesses to answer questions over the objection of plaintiff, as excepted to by plaintiff.

'(2) The court erred in permitting the evidence of Brown given on a former trial of the case, and contained in the bill of exceptions, to be read to the jury over the objection of the plaintiff.

'(3) The court erred in refusing to permit the jury to pass upon the evidence, and instructing the jury to render a verdict for the defendant, and entering judgment for defendant.'

The order made by the court is as follows 'Motion is granted, to which ruling the defendant then and there excepts, and defendant is granted sixty days within which to prepare and present a bill of exceptions.' The defendant took a writ of error from this order, as authorized by section 1267 of the Revised Statutes of 1892, and assigns as error 'that the judge erred in granting plaintiff's motion, and setting aside the verdict of the jury, and granting the plaintiff a new trial.'

The ordinary bill of exceptions states that 'the evidence upon which the court passed in granting a new trial, in so far as it affected defendant's liability for the accident which resulted in the death of plaintiff's intestate, was in substance as follows.' Then follows a condensed recitation of the evidence, but the ordinary bill of exceptions contains no reference to objections and exceptions taken at the trial to rulings of the court 'in refusing to permit the witnesses to answer the questions propounded by plaintiff, as excepted to on the trial by plaintiff, and permitting the witnesses to...