Platt v. Rowand

• Court: United States State Supreme Court of Florida
• Writing for the Court: SHACKLEFORD, C.J.
• Citation: 54 Fla. 237,45 So. 32
• Parties: PLATT v. ROWAND.
• Decision Date: 05 November 1907

45 So. 32

54 Fla. 237

PLATT
v.
ROWAND.

Florida Supreme Court, Division A.

November 5, 1907

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 [45 So. 33]

[54 Fla. 239] 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 [54 Fla. 240] 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...