Russell v. Marks
| Decision Date | 11 December 1893 |
| Parties | RUSSELL v. MARKS. |
| Court | Florida Supreme Court |
Error to circuit court, Orange county; John D. Broome, Judge.
Ejectment by Matthew R. Marks against Joseph G. Russell. There was judgment for plaintiff, and defendant brings error. Affirmed.
Syllabus by the Court
1. On writ of error, where there is no bill of exceptions showing the testimony upon which instructions, given or refused, were predicated, the appellate court cannot consider assignments of error based upon the giving or refusal of such instructions, except where a charge given and excepted to is patently irrelevant to the issues in the case, and is calculated to mislead the jury.
2. In ejectment it is not necessary that the verdict should expressly declare the 'defendant to be guilty,' but in such cases the verdict, if for the plaintiff, is sufficient when it finds in express terms that the plaintiff is entitled to the possession of the land in dispute, and describes the land by its numbers, or by its metes and bounds, or by any other sufficiently certain description by which it is known and can be identified; and finds the quantity of the plaintiff's estate therein.
COUNSEL J. F. Welborne, for plaintiff in error.
Massey & Willcox, for defendant in error.
M. R Marks, the defendant in error, recovered judgment in ejectment in the circuit court of Orange county against the plaintiff in error for a certain parcel of land located in that county. By writ of error it is brought here for review. The substance of the errors assigned is: First, the giving of certain instructions by the court to the jury, and the refusal of the court to give certain instructions requested by the defendant; and, second, that the verdict of the jury was not in the form provided by law, consequently the court erred in not setting it aside and granting a new trial, and erred also in entering judgment thereon.
In the record brought here there is no bill of exceptions giving us the evidence, or any part thereof, adduced at the trial, upon which the instructions given were predicated, or upon which it was proposed to predicate those requested and refused. Under these circumstances, according to the rule long since established in numerous decisions of this court, we cannot consider the assignments of error based upon the giving or refusal to give instructions by the court in the absence of the evidence in the cause upon which it was necessary to found those instructions. In the absence of that testimony the presumptions are that the rulings of the court below were proper; and we must uphold them upon that presumption when there is nothing before us to indicate whether they were erroneous or not. Proctor v. Hart, 5 Fla. 465; Burk v. Clark, 8 Fla. 9; McKay v. Friebele, Id. 21; Dibble v. Truluck, 11 Fla....
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