37 Fla. 480 | Fla. | 1896
This is a claimant’s suit in which the plaintiff in error sued out an attachment against one Paul E. Can-ova, and caused it to be levied upon a stock of goods alleged to belong to him. Defendants in error claimed the goods levied upon, and filed an. affidavit and bond
The instruction to the jury to return a verdict for claimants involves a consideration of the evidence submitted in the case. The trial was after the Revised Statutes became operative, and before we refer to the evidence, the provision in the revision, that the circuit or county courts may, under certain conditions, direct a jury to find a verdict, demands notice. The statutory command that the trial court should charge the jury only upon the law of the case, found in the act of 1877, and incorporated into the first part of section 1088 of the Revised Statutes has received a uniform construction by this court that the judge must not charge upon the weight of the evidence or the credibility of the witnesses. Williams vs. LaPenotiere, 32 Fla. 491, 14 South. Rep. 157, and cases cited. In addition to the original provision of the act of 1877 (Rev. Stat., sec. 1088) the revision contains the following, viz: “If, however, upon the conclusion of the argument of counsel in any civil case after all the evidence shall have been submitted, it be apparent to the Judge of the Circuit Court, or county court, that no
We purposely abstain from expressing any views as to the full probative force of the facts and circumstances submitted to the jury, and will only state the leading facts to indicate our views why the case should have gone to the jury. It appears that Canova was indebted to Meinhardt Bros. & Co. and Frank & Co., both composing the same members under different firm names, in the sum of $2,100, and was in failing circumstances, or, as expressed by the agent of claimants in testifying for them, “was about to go under.” The agent with full knowledge, as he admits, of Canova’s financial condition, went to him to get the claims protected. The result was that Canova put the claims in the shape of notes, one payable on demand, and the other one day after date, and executed a chattel mortgage, on the 10th ■ of October, 1892, the ■ date of the notes, on the stock of goods in question to secure the debt. This mortgage contains a stipulation that the mortgagor should retain possession of the property and retail it to customers, and to use the proceeds to purchase goods, and to enable him to do business as though the mortgage had not been given. The further pro vision is inserted that all- new goods purchased and placed in the store should be subject to the lien of the mortgage. Immediately after the mortgage was exe
There are additional circumstances bearing upon the question of the 5onafides of the sale which we do not state, but in view of the fraudulent character of the mortgage, which was the initiatory step in the negotiation between the parties, and all the other circumstances of the case, we think it was improper to withdraw the case from the jury as was done.
As appears from the record, the judge did not pass upon the correctness of the charges asked, as they were refused, as he states, because of the peremptory charge given to find for the claimants. Without considering the charges requested, we will order a reversal of the judgment, with directions that upon a similar state of facts the court will submit the case to the jury under proper instructions.
Ordered accordingly.