Thomas Bros. Co. v. Price & Watson

• Decision Date: 08 January 1909
• Parties: THOMAS BROS. CO. v. PRICE & WATSON et al.
• Court: Florida Supreme Court

48 So. 262

56 Fla. 854

THOMAS BROS. CO. v. PRICE & WATSON et al.

Florida Supreme Court, Division B.

January 8, 1909

Error to Circuit Court, Jackson County; J. Emmet Wolfe, Judge.

Action by Price & Watson and another against the Thomas Bros Company. Judgment for plaintiffs and defendant brings error. Affirmed.

Syllabus by the Court

SYLLABUS

Assignments of error that have no basis of fact in the record will not be considered by an appellate court.

The admission of evidence without objection and without exception cannot be assigned as error.

Where the defendant requests his attorney to interview another third attorney, and to find out from him what his fee would be to represent the defendant in a suit pending against him and his attorney complies with such request, and promptly reports to the defendant the result of such interview, and the defendant acquiesces therein, and agrees to the employment of such third attorney at the fee named in such interview, it is not error in a suit by such third attorney against such defendant for recovery of such fee to permit said two attorneys to testify to the result of the said interview between them.

Where a motion for new trial is filed in a cause, but the transcript of record on writ of error does not affirmatively show that such motion was acted upon by the trial court, the appellate court cannot consider an assignment of error based upon the assertion that the verdict was against the weight of the evidence, and was not supported by the evidence, since such an assault upon a verdict must primarily be made in a motion for new trial, and the trial court must have primarily passed thereon.

COUNSEL J. M. Calhoun, for plaintiffs in error.

Price &amp Watson and Francis B. CarterIn pro. per.

OPINION

TAYLOR J.

The defendants in error as plaintiffs below sued the plaintiffs in error as defendants below in the circuit court of Jackson county in assumpsit on a special contract of employment of the plaintiffs' services as attorneys at law in and about the defense of a suit instituted against them. The trial resulted in a verdict and judgment for the plaintiffs below and, for review of this judgment, the defendants below bring the case here by writ of error.

The first assignment of error alleges that the court below erred in striking out the defendants' plea to plaintiffs' declaration. We find no such action by the court in the record, and this assignment, therefore, falls to the ground for want of anything to sustain it.

The second, third, and fourth assignments of error complain of the overruling of the defendants' demurrer to various counts in the plaintiffs' declaration. There is no merit in these assignments. The declaration sufficiently alleged the facts that said demurrers criticised it for not alleging.

The fifth, sixth, and seventh assignments of error complain of the court's requiring the defendants to plead instanter, and in refusing to allow defendants a reasonable time within which to plead to plaintiffs' amended declaration. The record before us does not bear out the assertions of these assignments. There is nothing in the record showing that the defendants were required to plead instanter; but, on the contrary, the record shows that ample time was afforded the defendants for pleading.

The eighth assignment of error asserts error in the admission by the court of a letter in evidence offered by the plaintiffs. The record before us shows only one letter to have been offered or received in evidence, and to its introduction in evidence no objection was made by the defendants, and no exceptions was taken to the ruling of the court admitting it. This assignment, therefore, has no merit.

The ninth and tenth assignments of error complain of the court's permitting the plaintiffs Watson and Carter to testify as to a conversation had between them while the defendants...