St. Andrews Bay Lumber Co. v. Bernard
| Decision Date | 19 July 1932 |
| Citation | 143 So. 159,106 Fla. 232 |
| Parties | ST. ANDREWS BAY LUMBER CO. v. BERNARD et al.[*] |
| Court | Florida Supreme Court |
En Banc.
Error to Circuit Court, Okeechobee County; Elwyn Thomas, Judge.
Action between the St. Andrews Bay Lumber Company and Mark Bernard and others, copartners doing business as Bernard Bros. To review the judgment, the Lumber Company brings error.
Affirmed.
COUNSEL R. E. Hamrick, of Okeechobee, for plaintiff in error.
Haskins Gregory & Gordon, of Sebring, for defendants in error.
After dismissal of the writ of error in this case for failure of the briefs to comply with amended rule 20 (see 135 So. 837) proper briefs were tendered which on motion were accepted and the cause reinstated on the docket for disposition on its merits.
Motion for a new trial was made and denied, but no exception to the order denying a new trial was taken, and none appears in the bill of exceptions, although this ruling is attempted to be made the basis of the principal assignment of error, which attacks the sufficiency of the evidence to support a recovery.
The probative force of the evidence cannot be considered on writ of error where no motion for a new trial questioning the sufficiency of the evidence was made. Schmids v. Tampa Pub. Co., 72 Fla. 571, 73 So. 593. And, where a motion for a new trial was made, an exception must be taken to the denial of the motion for a new trial, or the ruling cannot be considered on writ of error taken from the judgment. Florida Power Co. v. Cason, 79 Fla. 619, 84 So. 921.
While a motion for a new trial is not essential to a consideration of asserted errors duly assigned, which cover matters other than sufficiency of the evidence to sustain the verdict ( Florida East Coast Ry. Co. v. Peters, 77 Fla. 411 83 So. 559), no such errors as will justify a reversal of the judgment in this case have been made to appear, so the judgment appealed from must be affirmed.
Questions of the sufficiency of the evidence to sustain the verdict and judgment to which a writ of error has been taken will not be considered by an appellate court where the record fails to disclose an exception taken by the plaintiff in error to the ruling of the trial court denying the motion for new trial made. See section 4609, Comp. Gen. Laws, section 2904, Rev Gen. St., which requires that the party aggrieved by any order or judgment, except a judgment on demurrer, to make his exceptions thereto. Phillips v. State, 62 Fla. 77, 57 So. 341; Henry v. Spitler, 67 Fla. 146, 64 So. 745, Ann. Cas. 1916E, 1267; Johnson v. State, 53 Fla. 42, 43 So. 430; Jacksonville Electric Co. v. Adams, 50 Fla. 429, 39 So. 183, 7 Ann. Cas. 241; Hoodless v. Jernigan, 51 Fla. 211, 41 So. 194.
Affirmed.
TERRELL, J., not participating.
Upon considering this case, after the writ of error was dismissed for noncompliance with amended rule 20 and reinstatement of it upon motion accompanied by briefs which also to not comply with the rule, I agree to the conclusion of affirmance of the judgment reached because: First, the motion for a new trial is not included in the bill of exceptions; second, there is no exception to the court's order overruling the motion; and, third, the questions submitted bear such relation to the evidence and its sufficiency to support the verdict or to justify instructions given that they were required to rest upon objections presented by a motion for a new trial.
The rule and the reason for its existence requiring a motion for a new trial to be embodied in a bill of exceptions have been so frequently discussed by this court and the digests are so full of references to those cases that further citation here is a work of supererogation.
Whether chapter 12019, § 3, Laws 1927, section 4612, Comp. Gen. Laws 1927, has succeeded entirely in destroying the aid to accuracy which...
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