32 Fla. 381 | Fla. | 1893
This is an attachment proceeding instituted by appellants, Jacob R. Einstein and Adolph Lehman, doing business in the firm name o? Einstein & Lehman, against the appellee in the Circuit Court for Hillsbor-ough county on the 26th day of December, A. D. 1888, returnable rule day in January, 1889-. The affidavit for the attachment was made by an attorney for plaintiffs, and after a recital of this fact, it states that “James
On the trial of the traverse plaintiffs offered in evidence four mortgages executed by defendant Munner-lyn to C. B. Rogers & Co. to secure certain indebtedness therein mentioned. The first one was executed and acknowledged on the 19th day of December, 1885, to secure the payment of four promissory notes bearing date November 12th, 1885, each for $1000 with interest at 8 per cent, per annum until paid, and due respectively six, twelve, eighteen and twenty-four months from date. The property embraced in this mortgage is certain real estate in Hillsborough county and a “stock of merchandise” situated in a certain store building in the town of Clear Water Harbor in said county. This mortgage was admitted to record on the 20 th day of September, A. D. 1888. The second mortgage bears date December 13th, 1888, and covers an additional lot of land situated in Hillsborough county, Florida. It is executed to secure four promissory notes, each for
Objection was made to the introduction in evidence of the foregoing mortgages on the ground that they were irrelevant. The court sustained the objection and plaintiffs excepted.
Plaintiffs then examined the defendant. Munnerlyn, who testified, in substance, that he owed Einstein & Lehman the amount for which suit was brought. He made the mortgage dated December 19th, 1885, to C. B. Rogers & Co. to secure $4,000. Wife of C. B. Rogers is sister of witness’ wife. Rogers not his confidential friend. Witness borrowed money from him to start business. The four thousand dollars was contracted when witness bought the property upon- which mort
Plaintiffs again, offered the mortgages in evidence in connection with the foregoing testimony, and on objection of defendant they were again ruled out by the court as irrelevant. This ruling was clearly erroneous. On the issue before, the jury, the mortgages should have been submitted to them for consideration. Vide Eckman & Vetsburg vs. Munnerlyn, ante, p. 367. On the question of a fraudulent intent as a matter of fact, they were proper for the consideration of the jury.
Errors are assigned on the charges given by the court to the jury, but as the record fails to show any proper exceptions in the trial court to the charges, they are not properly before us. On the issue of the traverse of the affidavit the burden of proof is on the plaintiffs, and hence they have the opening and conclusion.
The exclusion of the mortgages from the consideration of the jury was error, for which the case must be reversed. The other assignments of error it is not deemed necessary to consider.
The judgment is reversed and anew trial awarded.