Platt v. Rowand

Decision Date05 November 1907
PartiesPLATT v. ROWAND.
CourtFlorida Supreme Court

Rehearing Denied Dec. 19, 1907.

Error to Circuit Court, De Soto County; Joseph B. Wall, Judge.

Action by John A. Rowand against F. Everett Platt. Judgment for plaintiff, and defendant brings error. Affirmed.

Syllabus by the Court

SYLLABUS

In both civil actions and criminal prosecutions, a motion to strike out the entire testimony of a witness should be denied, if any part thereof is admissible for any purpose. The motion should be confined specifically to the inadmissible parts of the testimony; otherwise, it will be too broad.

Where no objections are interposed to questions propounded to a witness, and his testimony is admitted without objection, the party so failing to object is not entitled as a matter of right to have the responsive testimony of the witness stricken out on motion, even though it may be irrelevant or incompetent, and open to attack by proper grounds of objection.

When evidence which may have been irrelevant, or otherwise open to an objection seasonably made, has been admitted without objection, the witness having been examined and cross-examined by the respective parties, it is not error to deny a motion to strike out such evidence, made after its tendency and effect have been disclosed.

A party cannot be permitted to lie by, and experiment upon the testimony by failing to interpose objections thereto at the proper time, and ascertain what might come of it, for benefit or disadvantage, and then, if it turns out to be unpropitious for him, seek to have it excluded altogether on motion.

Because a cross-examination shakes the credibility, or demonstrates the inaccuracy and unreliability of the testimony, of a witness, given by him on his direct examination, it furnishes no reason or ground for striking out such testimony on motion; but, if it is otherwise proper testimony, it remains for the proper consideration of the jury--both the testimony brought out on the direct examination, as well as that elicited on the cross-examination.

A motion to strike out evidence that has been introduced in a cause must be predicated upon some feature of irrelevancy incompetency, legal inadmissibility, or impertinency in the evidence itself, and not upon the ground that it is not sufficient.

General objections to evidence, whether interposed at the time the evidence is offered or embraced in a motion to strike out or exclude, without specifying the precise grounds, are vague and nugatory, and are without weight before an appellate court, unless the evidence is inadmissible under any circumstances.

Where several grounds of objection are interposed to the introduction of proffered evidence, and the same are overruled, upon an assignment of error predicated thereon, an appellate court will consider only such grounds as are urged before it; the other grounds being treated as abandoned.

It is the established policy of the law to uphold certificates of acknowledgment of deeds; and, whereever substance is found obvious clerical errors and all technical omissions will be disregarded.

A joint acknowledgment of husband and wife, that they acknowledged the execution as their free act and deed, entitles to record a deed conveying the husband's realty, even though the separate acknowledgment of the wife be defective to convey her dower.

Even prior to the adoption of the Revised Statutes of 1892, a deputy clerk of the circuit court had the authority to take an acknowledgment of a deed in the name of the clerk of such court by himself as deputy.

Where one of the errors assigned is based upon the overruling of a motion for a new trial, and such motion consists of a number of grounds, an appellate court will consider only such grounds as are urged before it.

COUNSEL

Forrester & Burton, for plaintiff in error.

W. E Leitner, for defendant in error.

OPINION

SHACKLEFORD C.J.

The defendant in error brought an action of ejectment against the plaintiff in error in the circuit court for De Soto county to recover the possession of a certain described lot in the town of Arcadia. The defendant interposed a plea of not guilty, and a trial was had before a jury, which resulted in a verdict and judgment in favor of the plaintiff, from which the defendant seeks relief here on writ of error.

The first assignment is as follows: 'The court erred in overruling the defendant's motion to strike the testimony of B. F. Baldwin, plaintiff's witness, in regard to his possession of the lot in controversy in this suit.'

The bill of exceptions discloses that B. F. Baldwin was the first witness introduced on behalf of the plaintiff, who testified in substance that he was once the owner of the lot in controversy, having acquired title from F. M. Waldron in January, 1887; that he went into possession thereof and remained in possession until he sold and conveyed the same to Mrs. Martha Hewitt in June, 1887; that he was in the actual possession thereof from January to June, 1887, having a sawdust sidewalk across the lot, which was a part of F. M. Waldron's home field. On cross-examination the witness testified, in substance, that he conducted a store on a lot adjoining the lot in controversy, and that 'he meant by being in actual possession that he was the owner of the legal title of lot 7, and that in law possession followed the legal title'; that the lot was an uninclosed town lot, and that he 'did nothing in the way of improvements to it, except that he might have set a hitching post on it during the time he owned it.'

At the close of the testimony of the witness the defendant 'moved the court to strike the testimony of the witness Baldwin in regard to his possession of the lot in controversy for the reasons:

'(1) That it was not shown that he was in the actual possession thereof at any time during his alleged ownership of same.

'(2) Because same is immaterial and irrelevant, and not pertinent to the issue.'

The plaintiff's counsel stated to the court that the witness was placed on the stand 'for the purpose of later on proving the title in the plaintiff from one in actual possession of the lot in controversy, and that a deed in support of the witness' testimony would be introduced later.' The court thereupon announced that it would reserve its decision on the motion until later in the trial. After all the testimony was concluded in the case an order was made denying the motion.

So far as we are advised, no objections were interposed to any of the questions propounded to the witness; but, after he had been examined both in chief and in cross, the motion to strike, which we have copied in full above, was made. Several well-established legal principles are involved in this assignment, which it may be well to consider briefly.

In both civil actions and criminal prosecutions, a motion to strike out the entire testimony of a witness should be denied, if any part is admissible for any purpose. Hoodless v. Jernigan, 46 Fla, 213, 35 So. 656; Fields v. State, 46 Fla. 84, 35 So. 185; Johns v. State, 46 Fla. 153, 35 So. 71; Cook v. State, 46 Fla. 20, 35 So. 665; Baldwin v. State, 46 Fla. 115, 35 So. 220. The motion should be confined specifically to the inadmissible parts of the testimony; otherwise, it will be too broad.

Where no objections are interposed to questions propounded to a witness, and his testimony is admitted without objection, the party so falling to object is not entitled as a matter of right to have the responsive testimony of the witness stricken out on motion, even though it may be irrelevant or incompetent, and open to attack by proper grounds of objection. See Ard v. Crittenden (Ala.) 39 So. 675; Tutwiler Coal, Coke & Iron Co. v Nichols, 145 Ala. 666, 39 So. 762; Southern Ry. Co. v. Leard, 146 Ala. 349, 39 So. 449. In other words, when evidence which may have been irrelevant, or otherwise open to an objection seasonably taken, has been admitted without objection, the witness being examined and cross-examined by the respective parties, it is not error to deny a motion to strike out such evidence, made after its tendency and effect have been disclosed. Farmers' & Traders' Nat. Bank of Covington, Ky., v. Greene, 74 F. 439, 20 C. C. A. 500, 43 U.S. App. 446, and authorities there cited. As was well said by Judge severens in the opinion: 'A party cannot be permitted to lie by, and experiment upon the testimony, and ascertain what might come of it, for benefit or disadvantage, and then, if it turns out to be unpropitious for him, seek to exclude it altogether. This is a well-settled rule in practice, in dealing with evidence upon the trial of cases, both civil and criminal.' This is in line with what we...

To continue reading

Request your trial
21 cases
  • Coates v. Smith
    • United States
    • Supreme Court of Oregon
    • October 17, 1916
    ...the name of the grantor will not invalidate the instrument." The following principle is briefly stated in the case of Platt v. Rowand, 54 Fla. 237, 45 So. 32: "The declared and settled policy of the law as by this court is 'to uphold certificates of acknowledgment of deeds, and wherever sub......
  • Lewis v. State
    • United States
    • United States State Supreme Court of Florida
    • February 25, 1908
    ...legal inadmissibility, or impertinency in the evidence itself, and not upon the ground that it is not sufficient. Platt v. Rowand, 54 Fla. ----, 45 So. 32, authorities therein cited. This assignment has not been maintained. The defendant had taken the stand in his own behalf, and after he h......
  • Cross v. Aby
    • United States
    • United States State Supreme Court of Florida
    • February 4, 1908
    ......94, 41 So. 385, 8 L. R. A. (N. S.). 509, and authorities therein cited; Seaboard Air Line R. Co. v. Searborough, 52 Fla. 425, 42 So. 406; Platt. v. Rowand, 54 Fla. ----, 45 So. 32. The first three. grounds of objection are the only ones urged before us. As. was said in Kendrick v. ......
  • Wilson v. Jernigan
    • United States
    • United States State Supreme Court of Florida
    • March 23, 1909
    ...... Sims v. State, 54 Fla. 100, 44 So. 737; Marshall. v. State, 54 Fla. 66, 44 So. 742; Platt v. Rowand, 54 Fla. 237, 45 So. 32. As will also be seen by. reference to these cases and the authorities cited therein,. it is further settled ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT