Zigler v. Erler Corp.

Citation102 Fla. 981,136 So. 718
PartiesZIGLER v. ERLER CORPORATION.
Decision Date19 September 1931
CourtUnited States State Supreme Court of Florida

Error to Circuit Court, Hillsborough County; L. L. Parks, Judge.

Suit by Nina Zigler, as administratrix of the estate of Peter Zigler deceased, against the Erler Corporation. To review an order granting a new trial, plaintiff brings error.

Affirmed.

Syllabus by the Court.

SYLLABUS

On a writ of error taken under the statute (section 2905, Rev Gen. St. 1920, section 4615, Comp. Gen. Laws 1927) to an order granting a new trial, the only questions which can be considered are those involved in the order from which writ of error is taken, and such order will not be reversed, where no abuse of discretion in granting a new trial appears.

Cross-assignments of error by a defendant in error on a writ of error to the Supreme Court in a common-law case are not authorized by any statute or rule of court in this jurisdiction, and consequently such cross-assignments of error cannot be considered on writs of error taken in common-law cases.

A party may bring a writ of error to reverse his own judgment for error, if injustice has been done him in the court below.

There is nothing in the Florida practice which precludes a defendant in error in a common-law case from himself suing out a cross writ of error to the same judgment or appealable order as that to which his adversary has taken a writ of error, thereby enabling the defendant in error, by means of his cross writ of error and assignments of error based thereon, to obtain the same relief as appellees in chancery are able to obtain by means of cross-assignments of error without a cross-appeal.

COUNSEL

Peacock & Parker, of Tampa, for plaintiff in error.

Altman, Morrow & Cooper, of Tampa, for defendant in error.

OPINION

PER CURIAM.

On a writ of error taken under the statute (section 2905, Rev Gen. St. 1920, section 4615, Comp. Gen. Laws 1927), the only questions which can be considered are those involved in the order from which the writ of error is taken. Carney v. Stringfellow, 73 Fla. 700, 74 So. 866, and cases cited. Such order will not be reversed, where no abuse of discretion appears. Herrin v. Avon Mfg. Co., 87 Fla. 385, 100 So. 174, and cases cited. No such abuse appears in this case.

The defendant in error has filed six cross-assignments of error. These question the right of the plaintiff in error to maintain the suit and the sufficiency of the pleadings on plaintiff's part to state a cause of action. However, such cross-assignments have not been considered by the court in this case, because cross-assignments of error by a defendant in error in a common-law case are not authorized by any statute or rule of court in this jurisdiction. Consequently, such cross-assignments of error cannot be considered in the instant case. See Wilder v. Punta Gorda State Bank, 129 So. 865, 866, where this court, in passing, said:

'It is in effect contended by appellants that the reversal of this cause upon the former appeal was not an adjudication of any other questions than those in terms discussed and decided, and that upon this appeal any other question may be assigned for error. This argument would have great weight if the case were here on writ of error, because we have no statute or rule of court that authorizes or
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14 cases
  • Beckwith v. Bailey
    • United States
    • United States State Supreme Court of Florida
    • 14 Mayo 1935
    ...Miami Tripure Water Co., 100 Fla. 221, 129 So. 763; Sahlberg v. J. A. Teague Furniture Co., 100 Fla. 972, 130 So. 432; Zigler v. Erler Corp., 102 Fla. 981, 136 So. 718; Phillips v. Garrett, 109 Fla. 435, 147 So. Wolfe v. City of Miami, 114 Fla. 238, 154 So. 196; City of Gainesville v. Kirkl......
  • Hollywood, Inc. v. Clark
    • United States
    • United States State Supreme Court of Florida
    • 24 Septiembre 1943
    ...... been taken, could not be considered. Judson Lumber Corp. v. Patterson, 68 Fla. 100, 66 So. 727. An appeal from a. supplemental order merely carrying out ... error. Wolfe v. City of Miami, 114 Fla. 238, 154 So. 196; Zigler v. Erler Corp., 102 Fla. 981, 136 So. 718. See generally, 4 C.J.S., Appeal and Error, § 1299, p. ......
  • Automobile Ins. Co. v. Barnes-Manley Wet Wash Laundry Co., 3521.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • 29 Junio 1948
    ...Dashiel, 70 U.S. 688, 701, 18 L.Ed. 268; Scott v. Partview Realty & Improvement Co., 241 Mo. 112, 145 S.W. 48, 50; Zigler v. Erler Corporation, 102 Fla. 981, 136 So. 718, 719; Houchin Sales Co. v. Angert, 8 Cir., 11 F.2d 115, 119; Shaheen v. Hershfield, 247 Mass. 543, 142 N.E. 761, 762; Bla......
  • City of Miami v. Bopp
    • United States
    • United States State Supreme Court of Florida
    • 6 Diciembre 1934
    ...An order granting a new trial will not be reversed where no abuse of sound discretion in granting a new trial appears. Zigler v. Erler Corp., 102 Fla. 981, 136 So. 718; Woods v. A. C. L. R. R. Co., To warrant an appellate court in disturbing an order of the trial court granting a new trial,......
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