Wilson v. Johnson

• Decision Date: 22 May 1906
• Citation: 51 Fla. 370,41 So. 395
• Parties: WILSON v. JOHNSON et al.
• Court: Florida Supreme Court

41 So. 395

51 Fla. 370

WILSON v. JOHNSON et al.

Florida Supreme Court, Division A.

May 22, 1906

Error to Circuit Court, Columbia County; J. B. Wall, Acting Judge in place of B. H. Palmer, Judge.

Action by Richard Johnson and Essie Johnson against Thomas Wilson. From judgment for plaintiffs, defendant brings error. Affirmed.

Syllabus by the Court

SYLLABUS

Objections interposed to the introduction in evidence of a written instrument, which do not appear upon the face thereof, but would have to be proved by extraneous evidence, should be overruled.

The trial court is authorized to regulate the order of the introduction of evidence, and its discretion in this matter will only be interfered with by an appellate court where clearly abused.

A motion to strike out evidence that has been introduced in a cause must be predicated upon some feature of irrelevancy incompetency, legal inadmissibility, or impertinency in the evidence itself. Where evidence has been introduced by a party, whether plaintiff or defendant, that in itself is pertinent, relevant, legal, and proper so far as it goes, but which, in the conception of the opposite party, falls short for the want of proof of other necessary facts, the proper practice for such party is to ask for appropriate instructions from the court to the jury.

If the plaintiff, in an action of ejectment, claims title by descent, it is sufficient for him, in the first instance, to prove his heirship, and that the ancestor under whom he claims was the person last seised of the lands in controversy.

After either or both parties have rested, the admission or exclusion of further evidence is in the discretion of the judge, and this discretion extends to evidence offered during and after the argument, and even after the cause has been submitted to the jury; but an exception may be taken, and if the ruling be an abuse of discretion relief may be had from an appellate court.

An application for a postponement or a continuance is addressed to the sound judicial discretion of the trial court, and the ruling of the trial court either granting or denying such application will not be reversed by an appellate court unless an abuse of this discretion is clearly shown.

Courts of justice exist for the administration and furtherance of justice, and in the conduct of trials, generally, much must be left to the discretion of the trial judge.

A stranger in possession of lands is presumed to nold under the owner, and the burden of proof is on him to show that the owner knew his possession to be hostile, or that it was so open and notorious as to raise a presumption of such notice.

When the peremptory charge was properly given, any remarks made by the trial judge in the presence of the jury are harmless.

COUNSEL M. C. Jordan, for plaintiff in error.

M. M Scarborough, Jr., and Roberson & Small, for defendants in error.

OPINION

SHACKLEFORD C.J.

The defendants in error brought an action of ejectment against the plaintiff in error in the circuit court for Columbia county, which resulted in a verdict and judgment for the plaintffs, from which the defendant seeks relief here.

This is the second time this case has been here. See Johnson v. Wilson, 48 Fla. 76, 37 So. 179.

The first assignment is as follows: 'The court respectively erred in admitting severally in evidence the deed from A. J. T. Wright and O. A. Caldwell to Richard Johnson, Sr., without proof of title in or possession of the land described therein by said parties at or near the time of said conveyances respectively.'

The bill of exceptions discloses that the two deeds objected to constituted the first evidence introduced by plaintiff.

As we said in Thomas v. Williamson (decided here at the present term) 40 So. 831: 'Objections interposed to the introduction in evidence of a written instrument, which do not appear upon the face thereof, but would have to be proved by extraneous evidence, should be overruled.' Also, see to the same effect Hoodless v. Jernigan (also decided here at the present term) 41 So. 194, wherein we also said that 'it is also settled law in this court that the trial court is authorized to regulate the order of the introduction of evidence, and its discretion in this matter will only be interfered with by an appellate court where clearly abused.' See, also, Pittman v. State (decided here at the present term) 41 So. 385, and authorities therein cited. This error is not well assigned.

The second assignment is that 'the court respectively erred in severally refusing to strike from the evidence said deeds upon motion of defendant, upon defendant's ground, as stated, that no title or possession was shown in said Wright or said Caldwell to make such legal title appear in them as would drive defendant to proof of title on his part; said motion having been made after plaintiffs had rested their case.'

We are of the opinion that no error was committed by the trial court in overruling this motion. As we said in Walker v. Lee (decided here at the present term) 40 So. 881: 'A motion to strike out evidence that has been introduced in a cause must be predicated upon some feature of irrelevancy, incompetency, legal inadmissibility, or impertinency in the evidence itself. Where evidence has been introduced by a party, whether plaintiff or defendant, that in itself is pertinent, relevant, legal, and proper so far as it goes, but which, in the conception of the opposite party, falls short, for the want of proof of other necessary facts, the proper practice for such party is to ask for appropriate instructions from the court to the jury.' Also, see the authorities therein cited. The instruments so sought to be stricken had not been received conditionally, upon the promise of the plaintiffs to supply the necessary connecting evidence. Pittman v. State, supra, and authorites cited therein.

However, there is still another reason why the motion should not have been granted. The evidence introduced on behalf of the plaintiffs was to the effect that Richard Johnson, Sr., the grantee in the two deeds, moved upon and resided upon the land in question with his children during the latter part of the Civil War and after the close thereof, one witness testifying in the years 1865, 1866, 1867, and 'along there,' when the shops of the railroad company, for which Richard Johnson, Sr., worked as fireman on an engine, were moved from Lake City to Jacksonville, and he followed the shops and moved to Jacksonville also, where he died 'some time after the war,' the date not being given; that his wife and died about the beginning of the war; that they had three children, Richard, Jr., Liddy, who married and died, leaving one child, Essie, and Anderson, who died during boyhood. Richard Johnson, Jr., and Essie Johnson were the plaintiffs who instituted the action of ejectment, claiming title to the land in question as the heirs of Richard Johnson, Sr. As laid down in Warvelle's Ejectment, § 233: 'It would seem, further, that, if plaintiff claims by descent, it is sufficient for him, in the first instance, to prove his heirship, and that the ancestor under whom he claims was the person last seised of the lands in controversy.' Supporting this proposition, see Jones v. Bland, 112 Pa. 176, 2 A. 541; Weaver v. Rush, 62 Ark. 51, 34 S.W. 256. Also, see, 15 Cyc. 38.

The third assignment is as follows: 'The court erred in granting a continuance for three days on motion of the plaintiffs to obtain the testimony of a witness from Jacksonville to supply plaintiff's failure to prove that the husband of Lydia Johnson was dead, or that she was not married, after plaintiffs had rested their case, and the defendant had moved the court to instruct the jury to find a verdict for the defendant upon the ground stated by defendant that the testimony of the plaintiffs had shown that Lydia Johnson was married and Essie Johnson was a child of said marriage, and the father was not made a party plaintiff or cause shown why he was not made a party, whereby counsel for defendant and defendant were put to great expense.'

We find from the transcript that, after plaintiffs had rested their case, and the defendant had unsuccessfully moved to strike out from the evidence the two deeds, which ruling formed the basis for the second assignment, he then moved the court to direct the jury to find a verdict for the defendant upon the following grounds:

'First. The plaintiffs failed to show any title or possession in the respective grantors of Richard Johnson, deceased.

'Second. There was no evidence identifying the plaintiffs as the children of Richard Johnson, deceased.

'Third. That the evidence on the part of the plaintiffs showed that Lydia Johnson had married before she died, leaving a husband, the father of the plaintiff, Essie Johnson, and that he was not joined

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