Pickett v. Bryan
| Decision Date | 12 June 1894 |
| Citation | 34 Fla. 38,15 So. 681 |
| Parties | PICKETT v. BRYAN et ux. |
| Court | Florida Supreme Court |
Appeal from circuit court, Volusia county; John D. Broome, Judge.
Action by Joseph L. Pickett against Joseph D. Bryan, Jr., and wife. Judgment for defendants, and plaintiff appeals. Affirmed.
Syllabus by the Court
1. Where it appears from the bill of exceptions that testimony not incorporated therein was submitted to and passed upon by the court or jury, the appellate court will not review the evidence to ascertain whether or not it sustains the judgment or verdict. The rule is settled that the decision of the trial court will not be disturbed, as being contrary to the evidence, when all the testimony that was before the court is not properly presented to the appellate court.
2. The appellate court will not consider agreements of counsel to amend and supply deficiencies in bills of exceptions properly certified to by the trial judge and found in the transcript. The action of this court must bear upon the action of the trial court, and bills of exceptions certified to by that court must be regarded as the only evidence of matters in pais transpiring at the trial.
COUNSEL E. M. Cheney and A. W. Cockrell & Son, for appellant.
Pickett the appellant, sued Bryan and wife, appellees, in ejectment to recover possession of a certain parcel of land situated in Volusia county, Fla. The record shows that when the case came on for trial upon the issue tendered by the plea of not guilty a jury was waived, and the court, after hearing the evidence, rendered judgment in favor of defendants, from which an appeal was taken by the plaintiff.
The bill of exceptions recites that when the issue joined between the parties came on to be tried by the court, by consent without a jury, the plaintiff, to maintain the issue on his behalf, offered in evidence a certain patent issued by the United States to Seymour Pickett, his heirs and assigns bearing date the 15th day of November, A. D. 1888, and then closed his case. The patent contains, among others, the following recitals, viz.: That there had been deposited in the general land office of the United States a patent certificate of the register of the United States land office at Gainesville, Fla., dated September 5, 1888, whereby it appeared that the claim of Seymour Pickett to a certain tract of land situated in Florida was confirmed by the act of congress approved February 8, 1827, and that said claim had been regularly surveyed by a designated description, and, as shown by a plat on file in the general land office of the United States, duly authenticated on the 29th day of September, A. D. 1888, by the signature of the surveyor general for the state of Florida. It is also recited that a final decree had been rendered in the United States district court for the northern district of Florida, on the petition of Joseph L. Pickett, adjudging that the Seymour Pickett grant, according to the survey thereof as shown by the said plat in the surveyor general's office, take precedence to the grants to Ambrose Hull and P. R. Del Calla and any survey of said grants, so far as the same conflicted with the said survey of the Seymour Pickett grant. The patent purports to convey to Seymour Pickett, his heirs or legal representatives, and to his or their heirs, the tract of land embraced in the said survey and plat, and bears date the 15th day of November, A. D. 1888. As shown by the bill of exceptions, this was all the testimony offered by the plaintiff.
It also appears that defendants, to maintain the issue on their part offered in evidence certain portions of the fourth volume of Duff Green's edition of the American State Papers, for the purpose of showing that Seymour Pickett derived title to the land in question from the Spanish government, and that the plaintiff and his ancestors had a right of entry on the said lands continuously since 1849, and that the United States did not have the legal title to the land at the date of said patent. This testimony was admitted over the objection of the plaintiff. The...
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