Florida Central & Peninsular Railroad v. St. Clair-Abrams

35 Fla. 514 | Fla. | 1895

Mabry, C. J.:

In October, 1890, appellee commenced in.the .Circuit Court for Lake county an action of unlawful entry and detainer of a certain described lot of land in the-town of Tavares, Lake County, Florida, against appellant, and on the trial obtained a judgment for possession and six hundred dollars damages. An appeal was taken to the January term, 1891, of this court and the transcript of the record was- filed here qn the* '26th of that month. The petition of appeal filed at the time the transcript was filed contains a recital of pleas in the Circuit Court for the Seventh Judicial Circuit for Lake County, and after further "reciting the judgment rendered in the cause and the entry of appeal, •states that the inquisition in the case is not true and prays' for an appeal. The petition, ..originally filed here; is the only petition of appeal or assignment of •error in the case.

A motion has been made on the .part of appellee to rstrike from the transcript of the record so much as purports to be the evidence taken on the trial and also the plats or maps filed by appellant on its motion for a new trial in the Circuit Court. This motion must be .granted. There is copied into the record what purports to be the evidence of witnesses examined on the trial of the case in the Circuit Court, and it contains an agreement, signed by counsel of both parties, that it is substantially the testimony used on the trial, and that the same should be used in the record of appeal. There is no bill of exceptions, under the signature of the judge, embodying the testimony as agreed upon by counsel, and without this we can not consider the paper as evidence in the cause. The stipulation of counsel extended no further than that the testimony agreed upon should be used in the record of appeal, and even if it had undertaken to supply the place of a bill of exceptions, we could not so consider it. Pine vs. Anderson, 22 Fla, 330, and authorities cited; Pickett vs. Bryan, 34 Fla. 38. There is no record evidence that the maps copied into the transcript were used in evidence on the trial of the cause or on the motion for a new trial. They have no place in the record. The elimination from the record of what purports to be the evidence and the maps referred to leaves no question that we can review on the petition of appeal.

The sustaining of the motion to strike the papers mentioned from the record disposes of the case and while it is before us a final judgment will be now entered. It is therefore ordered that appellee’s motion be granted and that the judgment appealed from be affirmed.