Merchants' Nat. Bank v. Grunthal

• Decision Date: 13 October 1896
• Citation: Merchants' Nat. Bank v. Grunthal, 20 So. 809, 38 Fla. 93 (Fla. 1896)
• Parties: MERCHANTS' NAT. BANK OF JACKSONVILLE v. GRUNTHAL (two cases).
• Court: Florida Supreme Court

20 So. 809

38 Fla. 93

MERCHANTS' NAT. BANK OF JACKSONVILLE v. GRUNTHAL (two cases).

Florida Supreme Court

October 13, 1896

Error to circuit court, Duval county; R. M. Call, Judge.

Separate actions of attachment by the Merchants' National Bank of Jacksonville against Isadore Grunthal, under the name of I. &amp H. Grunthal. From judgments dissolving the attachments and dismissing the writs, plaintiff brings error. On separate motions to dismiss. Granted.

Syllabus by the Court

SYLLABUS

1. The statutory affidavit and bond upon which an attachment issues and the defendant's traverse affidavit, when there is a contest as to the facts, are jurisdictional, and constitute the statutory pleadings in such case, and, when brought into question in an appellate court, constitute the record proper of the case, and have no place in a bill of exceptions, whose sole office is to evidence to an appellate court matters purely in pais.

2. The only evidence for an appellate court as to matters that appear of record is the record proper, duly certified by the clerk of the court who is the custodian of them; and, as to matters not of record or in pais, the judge's certificate to a bill of exceptions containing them is the only evidence. Where matters of record are set forth or exhibited only in and by a bill of exceptions certified by the judge, it furnishes no evidence of such matters to an appellate court upon which it can act, where the record proper, certified by the clerk of the court below, does not contain them.

3. Where it is apparent from a transcript of record brought to an appellate court by writ of error that none of the matters questioned by the errors assigned are so set forth and evidenced by such transcript as that such court can properly recognize and consider them, the writ of error should be dismissed.

4. Under rule 15 of the rules of practice of the supreme court of Florida (18 South. vii.), no suggestion of diminution of the record will be allowed to be made, without the consent of both parties, after the abstract or statement of the cause has been agreed upon by the parties, or after the opposing statement has been filed, in case of disagreement.

COUNSEL

Bisbee & Rinehart, for plaintiff in error.

A. W Cockrell & Son, for defendant in error.

OPINION

TAYLOR J.

The records brought here by writ of error in the two causes above stated are substantially the same, so that what is said of the one applies equally as well to the other. In both cases motions are made to strike from the records so much of the transcripts filed here as embrace the bills of exceptions and the several assignments of error, and to dismiss the writs of error, upon the following grounds: (1) The said bills of exceptions were not settled as prescribed by law, no assignments of error having been presented or filed as required by law. (2) The said several assignments, or either of them, have no basis in the records filed herein. (3) The said several assignments are wholly unsupported by the record. (4) This court, upon the records, has no jurisdiction to entertain the said several assignments of error, or any of them. (5) The said several assignments are severally based upon matters which do not appear in the records herein.

From the bills of exceptions contained in the transcripts of the record filed here, it appears that two suits in attachment were instituted in the court below by the plaintiff in error, as plaintiff below, against the defendant in error, as defendant below; that in each case the defendant filed a traverse to the plaintiff's affidavit in attachment; that the plaintiff moved the court to strike from the files these traverse affidavits of the defendant, upon the grounds that they did not traverse any, allegation of the plaintiff's affidavits for attachments, and raised an immaterial issue, and because the court had no jurisdiction to try or to direct the trial of the issue, if any, raised by the defendant's affidavits; that said motions to strike the defendant's traverse affidavits were denied; that the plaintiff then demurred to the said traverse affidavits of the defendant, upon the ground that they did not present any issue that the court was authorized to try; that these demurrers were overruled by the court; that the two cases then came on for trial before the circuit judge, neither party demanding a jury, for dissolution of the attachments upon the defendant's traverse affidavits; that at the trials the plaintiff declined to offer any evidence upon the issues, upon the ground that the said issues tendered by the defendant's traverse affidavits were not such as the court was authorized to try, and were not such that the court could require the plaintiff to offer any evidence on its behalf, whereupon the judge granted an order dissolving the attachments and dismissing the writs. From these judgments the writs of error now moved to be dismissed were taken.

The errors assigned here are as follows: (1) The court erred in refusing to strike out the traverse affidavits of the defendant, on the ground that they did not deny any allegation in the affidavit for plaintiff, either as to the debt or sum demanded, or as to the special cause assigned in plaintiff's affidavit. (2) The circuit court erred in overruling the demurrer of the plaintiff to the defendant's traverse affidavit, on the ground that the said affidavit tendered no issue authorized by the statutes of Florida, and does not deny any allegation in the affidavit on behalf of the plaintiff, either as to the debt or sum demanded, or as to the special grounds assigned in the said plaintiff's affidavit. (3) The court erred in overruling the objections of the plaintiff to the...