Reddick v. Joseph

• Decision Date: 11 February 1895
• Citation: 16 So. 781,35 Fla. 65
• Parties: REDDICK v. JOSEPH.
• Court: Florida Supreme Court

16 So. 781

35 Fla. 65

REDDICK v. JOSEPH.

Florida Supreme Court

February 11, 1895

Appeal from circuit court, Walton county; W. D. Barnes, Judge.

Action by Moses Joseph against James L. Reddick and Daniel J Williams. Judgment for plaintiff. From an order refusing a new trial, J. L. Reddick appeals. Reversed.

Syllabus by the Court

SYLLABUS

1. Where there have been two consecutive trials of a case, and two verdicts for the defendant, and a third trial granted the plaintiff, and where the record does not disclose the testimony on the first trial, but does show that the evidence on the second trial was conflicting, the action of the trial judge, in granting the third trial, will not be disturbed on appeal, as being an abuse of a sound judicial discretion.

2. An application to a judge of the circuit court for a change of venue in a cause based on what purports to be an affidavit but not sworn to, will not authorize a change of venue in the cause; and, if the court does order a change of venue on such an application, it will be an abuse of a sound judicial discretion.

COUNSEL

Liddon & Carter, for appellant.

Daniel Campbell, for appellee. Moses Joseph brought an action of assumpsit against J. L. Reddick and Daniel J Williams, as late partners under the firm name and style of Reddick & Williams, in the circuit court of Washington county, Fla., on the 13th day of February, 1888. Pleas were filed by defendant J. L. Reddick, and issue joined thereon. At the fall term, 1888, the case was tried, and the jury rendered the following verdict, viz.: 'We, the jury, find for the defendant J. L. Reddick. We, the jury, find for the plaintiff the sum of three hundred and seventy-nine and 34/100 dollars against defendant Daniel J. Williams. November 10, 1888. T. H. Harman, Foreman.' Upon the rendition of the verdict, the plaintiff made a motion for a new trial on the following grounds, viz.: 'The verdict of the jury is contrary to the law, evidence, and charge of the court, and against the preponderance of the evidence.' The court granted the motion. No exceptions were taken during the trial, and there is no bill of exceptions showing the testimony on the trial.

At the spring term, 1889, the case was again tried, and the jury rendered the following verdict, viz.: 'We, the jury, find for the defendant. J. W. McKinne, Foreman.' The plaintiff entered a motion for a new trial on the following grounds viz.: '(1) Because the verdict of the jury is against the evidence, law, and charge of the court. (2) Because the verdict of the jury is against the weight of the evidence, and without evidence to support it.' The court granted this motion, to which the defendant excepted, and was allowed 30 days to present a bill of exceptions. A motion was then made by the plaintiff for a change of venue, which was continued. A bill of exceptions was in due time settled and signed.

It is unnecessary to set forth the evidence as disclosed by the bill of exceptions, and is sufficient to say that, upon the issues presented by the pleadings, it was conflicting.

The application for a change of venue was based alone upon what purports to be an affidavit of one W. D. Affleck, and is stated in the record in the following words and figures, viz.:

'And thereupon, to wit, upon the 18th day of May, 1889, the plaintiff entered a motion for a change of venue, based upon the affidavit, which is in the words and figures following, to wit:

"State of Florida, Washington County. Personally appeared before me W. D. Affleck, who being duly sworn says that he is the agent of Moses Joseph, of Columbus, Ga.; that there is a suit pending in the circuit court of said county, wherein Moses Joseph is plaintiff, and James L. Reddick and Daniel J. Williams, partners as Reddick & Williams, are defendants; that he, as the agent of said Joseph, was the one who authorized said suit, and is more familiar with the facts of the case than the said Joseph is; that there has been two trials of said suit in said county, and verdicts rendered for the defendants, and new trials granted; that he fears that the plaintiff will not receive a fair trial in said court, for the reason that the defendants have an undue influence over the inhabitants of said county; that they have heretofore been merchants in said county, doing a large business among the inhabitants of the county, extending credits and other favors to their customers and patrons, and one of them is a large stock owner in the county, and has a number of men tending his flocks; that he and his counsel have heard repeated remarks to the effect that plaintiff could never get a jury in the county that would give him a verdict in the case. He therefore prays that a change of venue be granted in the case to Jackson county, Fla. W. D. Affieck. Sworn to and subscribed before me this 18th day of May, 1889."

This application was afterwards heard, and an order was made by the judge in the following words and figures, viz.:

'Moses Joseph v. James L. Reddick and Daniel J. Williams, Partners as Reddick & Williams. This cause coming on to be heard by consent of counsel, upon motion for a change of venue, after hearing argument of counsel for respective parties, it is ordered that the venue in this cause be changed from Washington county circuit court to the circuit court of Walton county, Fla.; and the clerk of the court is hereby directed to send forward the papers in this suit by some fit and proper person to said circuit court of Walton county. 25th May, 1888. J. F. McClellan, Judge 1st Jud. Ctorida.'

Afterwards there were other pleadings and proceedings, a trial of the case at the spring term, 1890, of the circuit court of Walton county, and a verdict and final judgment for the plaintiff. The defendant moved for a new trial, which was denied. Exceptions to the ruling of the court were taken by him, an appeal entered, and a bill of exceptions was settled and signed by the judge. There being a severance in the case, an appeal is prosecuted solely by appellant, J. L. Reddick.

OPINION

HOCKER, Circuit Judge (after stating the facts).

The first assignment of error is as follows, viz.: 'The court erred in granting the motion of appellee for a new trial on May 17, 1889, at the spring term of the court for Washington county.'

In support of this assignment, the appellant's attorneys in their brief cite Railroad Co. v. Nash, 12 Fla. 497 and Wilson v. Dibble, 14 Fla. 47. In the first of these cases there had been three trials,--the first, in 1861, resultng in a mistrial, the jury having failed to agree upon a verdict; the...