Ramsey v. City of Kissimmee

• Decision Date: 13 July 1933
• Citation: 111 Fla. 387,149 So. 553
• Parties: RAMSEY et al. v. CITY OF KISSIMMEE.
• Court: Florida Supreme Court

149 So. 553

111 Fla. 387

RAMSEY et al. v. CITY OF KISSIMMEE.

Florida Supreme Court

July 13, 1933

En Banc.

Error to Circuit Court, Osceola County; F. A. Smith, Judge.

Action by G. R. Ramsey and A. B. Herndon, copartners, doing business as Ramsey-Herndon & Co., against the City of Kissimmee. To review a judgment of nonsuit, plaintiffs bring error.

Judgment reversed and cause remanded for a new trial.

COUNSEL Dickinson & Dickinson, of Orlando, for plaintiffs in error.

G. P Garrett, of Orlando, and Lewis O'Bryan, of Kissimmee, for defendant in error.

OPINION

DAVIS Chief Justice.

The city of Kissimmee has a special charter adopted at a charter board election but ratified, validated, and confirmed by an act of the Legislature. See chapter 9808, Special Acts 1923 Laws of Florida. This court will therefore take judicial notice of the city charter of Kissimmee, which is shown to be on file and recorded in the office of the clerk of the circuit court, although such charter has been merely referred to, and not re-enacted in haec verba, in the statute laws of this state.

The rule is that an appellate court will take judicial cognizance of any matter of which the court of original jurisdiction might take notice, where the party relying on the judicial knowledge of the lower court has procured and brought into the appellate court's records, the source of the lower court's judicial knowledge. 15 R. C. L. 1063.

The practice of the courts is to take judicial cognizance of the existence of villages, towns, and cities. This, we deem, is sufficient to require the court to judicially notice, also, the charters under which such villages, towns and cities may exist, in cases where such charters have been approved by statute, and the judicial knowledge of the court has been aided by bringing into the judicial record a true copy of such legislatively approved charter taken from an official source.

The foregoing preliminary statement of the law applicable to this case in its general phases, brings us to a consideration of the particular controversy now before this court, which is being dealt with on a writ of error prosecuted by plaintiff below, from a judgment of nonsuit with bill of exceptions taken under the statute. See section 4617, C. G. L., section 2907, R. G. S.

The plaintiffs below, Ramsey-Herndon & Co., civil engineers, sued the city of Kissimmee on a stated special contract for certain engineering services, alleged to have been rendered by them to the city on their partly performed special agreement. The special contract sued on was set forth in the declaration in haec verba, and the pleading of it was coupled with appropriate allegations of alleged breaches of it. Defendant pleaded as a defense the general issue of 'Never promised as alleged.' The trial was proceeded with principally on the issue raised by the plea just mentioned.

The trial judge sustained objections to, and refused to admit in evidence, the written contract sued on and specifically described in the declaration. Plaintiffs thereupon took a nonsuit, with bill of exceptions, to this court to review the ruling of the circuit court that eliminated from consideration on the trial the signed contract tendered in evidence after due proof of its having been signed in the form pleaded.

Because the evidence offered on the trial was confined exclusively to the special contract described in the special count of the plaintiffs' declaration, whereas the defendant's plea denied the making of any such contract as alleged, it consequently devolved upon the plaintiffs to establish as a basis for any recovery under it, a valid contract made by the officials authorized by the charter to make contracts on the city's behalf. Town of Madison v. Newsome, 39 Fla. 149, 22 So. 270.

Prima facie the written contract pleaded in the declaration in haec verba, would be sufficiently established to be admitted in evidence at the trial as part of plaintiff's proof of the general issue, upon plaintiffs' mere production of the identical written contract sued on, as set forth in haec verba in the declaration, accompanied by proof that it was in fact actually executed by the mayor commissioner of the city of Kissimmee, in exactly the form the declaration pleaded it as having been executed, without any additional requirement of preliminary proof of the authority, if any, which the mayor had for signing it as he did. This is so, because the rule is well settled in this state that the legal sufficiency of a relevant document of this kind to authorize a recovery cannot ordinarily be disposed of by a mere objection to receiving it in evidence, or by a simple motion to strike it from the evidence. Daniel v. Taylor, 33 Fla. 636, 15 So. 313; Ellis v. Clark, 39 Fla. 714, 23 So. 410; Ropes v. Minshew, 47 Fla. 212, 36 So. 579.

It is therefore error for the court to have refused to admit the written contract in evidence. This is so, notwithstanding the sufficiency of the mayor's signature as authority to legally bind the city may not have been adequately proved at the time, because the declaration pleaded the written instrument in haec verba in exactly the form in which it was tendered in evidence.

Plaintiffs were by their declaration only required to prove the fact of the mayor's signature to the pleaded contract, in order to have the contract received in evidence, subject to appropriate rulings by the court thereafter as to its legal sufficiency to bind the city, or to constitute a valid cause of action for the plaintiffs.

Objections to evidence, and motions to strike evidence, must be predicated upon some feature of irrelevancy, incompetency legal inadmissibility, or incompetency in the evidence itself. Evidence that in itself is pertinent, relevant, legal, and proper, so far as it goes, toward making out the plaintiffs' case, but which in the conception of the opposite party, falls short, for the want of proof of other necessary facts, of making out plaintiffs' case, is not subject to...