46 Fla. 255 | Fla. | 1903
On May 20, 1898, plaintiff in error instituted an action of replevin against defendant in error in the Circuit Court of Hillsborough county to recover certain personal property consisting of dry goods, clothing, shoes, hats, furniture and store fixtures, which had been levied upon by the defendant under certain writs of attachment. The plaintiff claimed to have purchased the goods from the attachment debtor just prior to the levy of the attachments, and the defendant claimed that such purchase was void because fraudulent as to creditors. The defendant pleaded not guilty, and a trial was had in December, 1898, resulting in a verdict for plaintiff. Defendant moved for a new trial assigning twenty-five grounds, six questioning the propriety
In Baggett v. Savannah Florida & Western Ry. Co., 45 Fla. 184, 34 South. Rep. 564, it was held that the action of the lower court in granting a motion for a new trial can not be reviewed by this court where several of the grounds of the motion are based upon the rulings of the court in giving or refusing charges not before this court for consideration. In that case the charges were not set forth in the bill of exceptions, nor were they made a part of the record as provided in sections 1090 and 1091, Revised Statutes. In the present case the instructions given and refused are set forth in the ordinary bill of exceptions, but the ordinary bill does not contain any statement of the evidence upon which such instructions were based, nor does it contain any statement of the proofs showing the propriety or impropriety of such instructions, as required by the rules of this court. Because of these defects in the ordinary bill those grounds of the motion based upon instructions given or refused can not be reviewed, nor can this court declare that the trial court was in error in granting a new trial upon the grounds of the motion based upon those instructions. Allen v. Lewis, 38 Fla. 115, 20 South. Rep. 821; Allen v. Lewis, 43 Fla. 301, 31 South. Rep. 286. Under these circumstances it is unnecessary to consider the other grounds of the motion, as the order granting the new trial must be affirmed for the reason stated. Baggett v. Savannah, Florida & Western Ry. Co., supra.
