Williams v. Pitt

• Decision Date: 10 November 1896
• Citation: 20 So. 936,38 Fla. 162
• Court: Florida Supreme Court
• Parties: WILLIAMS et al. v. PITT et al.

20 So. 936

38 Fla. 162

WILLIAMS et al. v. PITT et al.

Florida Supreme Court

November 10, 1896

Error to circuit court, De Soto county; H. J. Spence, Referee.

Action between W. J. Williams and others and F. B. Pitt and W. A Thompson. From the judgment Williams and others bring error. Motion to quash the writ of error and to dismiss. Motion denied on conditions.

Syllabus by the Court

SYLLABUS

1. A clerical mistake or inadvertence in testing a writ of error in the name of the former, instead of the present, chief justice of this court, can be rectified by amendment, and such amendment should be directed to be made.

2. Where one party to the proceedings seeks to excuse the failure to serve papers upon the opposite party as required by the rules, upon a claim that the adverse party has waived such service, and this waiver of service is disputed, the burden of proof is upon the party asserting the affirmative of the proposition.

3. A paper purporting to be an abstract of the record, but which is only a list of the papers filed in the case in chronological order, with some slight history of the proceedings and allusions to contents of the papers filed and references to the transcript of the record, wholly fails to accomplish the purpose of an abstract of the record as provided by the rules of this court.

4. The referee refused to sign the bill of exceptions presented to him, upon the ground, among others, that they incorrectly stated the proceedings before him. Three persons then signed the same. Such persons only certify that the bill was presented to the referee, and that he refused to sign, and that they have signed. They do not appear to have been present at the trial, or to have any knowledge of the matters stated in the supposed bill of exceptions, and do not certify to the truthfulness of the same. Such paper is of no validity whatever, and cannot be considered as a part of the record of the case.

5. A bill of exceptions imports verity. It was not the intention of our statute (Rev. St. s 1268) to admit bills of exceptions as effective and valid, where the judge had refused to sign the same, except upon the certificate of three persons who have knowledge of the matters recited therein, and will vouch for the truthfulness thereof.

COUNSEL O. T. Stanford, for plaintiffs in error.

Fred. T. Myers, for defendants in error.

OPINION

LIDDON J.

The grounds of the motion insisted upon are: (1) The said writ of error is not tested in the name of the chief justice of this court, as required by law. (3) No copy of the transcript of the record has been served upon defendants in error, or their attorneys, or either of them, as required by the rules of this court. (4) No abstract of the record has been served upon the defendants in error, or their attorneys, or either of them, as required by the rules of this court. (5) The paper writings contained in the record purporting to be bills of exceptions are not in conformity with the rules of this court governing the preparation of such bills. (6) The paper writings filed in this court purporting to be abstracts of record are not such abstracts as are required by the rules of this court. Examining these grounds, we find that the writ of error was tested in the name of a former instead of the present, chief justice of this court; the former chief justice being still a justice, and member of the court. This technical mistake or error can be rectified by amendment. It is so clearly apparent to us that it is the result of inadvertence, or a clerical error, that we hereby direct it to be amended so as to be tested in the name of the present chief justice; and, considering that such amendment has been made, proceed to the disposition of the other questions presented by the motion.

Upon the third and fourth grounds the plaintiffs in error admit that no service of the papers therein named has been made as required by the rules of this court, but claim that such service was waived by a verbal agreement between counsel for the respective parties. Affidavits have been filed by each party upon the subject. Examining them, we do not think those offered by plaintiffs in error sufficiently sustain the burden of proof which rests upon them. Properly speaking, the agreement, being in reference to a cause before this court should have been in writing, and filed here, in order for us to consider it, or be governed by it in any manner. Steele v. State, 33 Fla. 354, 14 So. 841.

The sixth ground--in regard to abstracts of the record on file in this court--is well taken. The paper purporting to be an abstract of the record is only a list of the papers filed in the case in chronological order, with some slight history of the proceedings in the case, and some slight allusions to the contents of the papers filed as pleadings. It contains references to the transcript of the record. It wholly fails to accomplish the object and purpose of an abstract of the record, as provided by the rules of this court. The nature of an abstract of the record, and a statement of what should be contained or expressed therein, and what should be omitted therefrom, have been fully set forth in recent decisions of this court. Poyntz v. Reynolds, 37 Fla. 533, 19 So. 649; Allen v. Lewis, 38 Fla. ----, 20 So. 821.

The record contains two papers, one of which purports to be the ordinary bill, and the other an evidentiary bill of exceptions. They both flagrantly violate the rules prescribed by this court as to the form and nature of bills of exception, and therefore could not be considered by us. We need not consider these supposed bills of exceptions as to the faults mentioned, for we find a more serious and fatal defect in them, which, without regard to the form in which they are prepared, prevents our taking them into consideration as a part of the record....