Jones v. Buddington

35 Fla. 121 | Fla. | 1895

Mabry, C. J.:

(After staling the facts).

It is contended by counsel for appellants that the^ court erred in overruling their motion made before the-hearing of the cause to admit in evidence certain books» referred to in the testimony of witnesses, and marked exhibits A, B, C, D and E. Thomas H. Maxey, who> was elected secretary and treasurer of the Florida, Atlantic & Gulf Central Railroad Company in February, 1866, was examined as a witness for complainants on interrogatories filed before a master. In an interrogatory propounded to the witness by complainants he was asked to examine a book that would be handed to him by the master, entitled “Minutes F., A. & G. Central R. R.,” and marked exhibit “A,” and say whether or not he recognized it as the minute-book of the Florida, Atlantic & Gulf Central Railroad Company, and if so, why he recognized it as such. The witness answered that he had examined “minutes F., A. & G. Central R. R.and marked exhibit “A,” and recognized the same as the minute-book of the Florida, Atlantic & Gulf Central Railroad Company from the proceedings recorded therein, many of the entries in the book being in his own handwriting. The witness was also asked to examine entries made in said book on certain dates and state if he knew in whose handwriting they were made. What were the entries about which the witness was interrogated and about which he testified does not appear in the interrogatories or in his answers. Witness was also asked to examine certain other books that would be handed to him by the master, called Ledger, Stock Ledger, Journal and book of entry of original certificates of stock issued, marked respectively exhibits R, C, D and E, and state if they were the original books of the Florida, Atlantic & Gulf Central Railroad Company. The witness answered that he had examined the books, and recognized them as the original books of said company. He was further examined as to the handwriting of certain entries in the books, but what were the contents of the books or entries therein about which he was examined does not appear from the questions and his answers.

George R. Foster, who was secretary and treasurer of the Florida, Atlantic & Gulf Central Railroad Company from July, 1859, to October, 1861, was also examined in reference to said books. It is made to appear that exhibit “A” of the testimony of Thomas IT. Maxey. entitled “Minutes F., A. & G. Central R. R.,” was handed this witness, and he was asked if he recognized it, and if so, how he recognized it, and what it was. Witness stated that he was familiar with the book, and saw in it records made by him as the officer of the company whose duty it was to make such records, and it was a book of record of the proceedings of the directors and stockholders of the Florida, Atlantic & Gulf Central Railroad Company. Witness was handed the said books marked exhibits B, C, I) and E, and stated that they were the original books of the Florida, Atlantic & Gulf Central Railroad Company, and which were, during his official connection with the company as secretary and treasurer, in his custody and control. This witness was also examined as to the handwriting of entries made in said books, but the contents or substance of the entries about which he was examined does not appear from his testimony.

F. P. Fleming, of the law-firm of Fleming & Daniel, testified that he had examined the books in evidence marked exhibits A, B, C, D and E, being the books of the Florida, Atlantic & Gulf Central Railroad Company; that for several years prior to that time there had been in the office of his firm in the city of Jacksonville several boxes containing books and papers of the Florida, Atlantic & Gulf Central Railroad Company, and that among them he found the books referred to above, and placed them in the hands of the master prior to the examination of Thomas H. Maxey.

Counsel for complainants made a motion to admit in evidence the said books marked exhibits A, B, C, D and E, on the grounds stated in the certificate of the master and. the affidavit of F. P. Fleming, accompanying the motion. The master certified that the said books were in his hands, and were exhibited to Thomas H. Maxey as the exhibits referred to and as to which he was interrogated, and they were the exhibits as to which he testified; that they were the same books referred to by George R. Foster and F. P. Fleming, and were exhibited to them at the time they respectively testified, and remained in his custody until they were forwarded with the testimony to the judge for final hearing of the cause. The affidavit of F. P. Fleming states that he was the member of the firm of Fleming & Daniel who signed the firm name to the agreement made in the cause, and that when he signed the agreement that the testimony in the cause was closed, it was done under the understanding and impression by him that the said books marked exhibits A, B, C, D and E, and referred to in the testimony of the witnesses, were in evidence, and not with any view of excluding the same, and that had he not been under such understanding and impression he would not have entered into such agreement as to closing the testimony. E. M. L’Engle, of counsel for defendants, filed an affidavit to the effect that he never had any understanding with F. P. Fleming, or any body else that the books referred to were in evidence, and that affiant was in noway responsible for any impression that said books were in evidence. That affiant, as one of the attorneys for defendants, had never impeached the identity of the books referred to, but still submitted that they were never offered in evidence, and could not under the agreements entered into be received.

The record in this cause does not show any written agreement as to closing the testimony therein, but this case was disposed of at the same time that the-case of the Florida Central and Western Railroad Company et al. vs. Ozias Buddington, Executor, et al. was decided, and it was therein agreed that the testimony and agreements in the former case should be considered as evdience in the latter, with the further stipulation that the testimony, including certain agreements, was then closed in the latter case. A motion was made in both cases to admit in evidence the books referred to, and. marked exhibits A, B, C, D and E, and the court entered an order, after reciting that the motion of complainants to allow them to introduce in evidence-exhibits A, B, C, D and E, designated in said motion, came on for hearing, “that said motion be and the-same is hereby overruled.” The judge also certified that the following books, to-wit: Minutes of the Florida, Atlantic & Gfulf Central Railroad Company,, marked exhibit “A,” the Stock Ledger of said company, marked exhibit “B,” the Journal of said company, marked exhibit “C,” the Ledger of the company, marked exhibit “L>,” and Stock certificate stub book of said company, marked exhibit “E,” are the books mentioned in the motion as exhibits A, B, C, D and E, and were before him at the hearing; a.nd an order was made directing that the original books be transmitted to the clerk of this court, for inspection and use as may be proper and necessary on the final appeal of the cause. The books referred to have been transmitted to the clerk of this court, and we discover no file marks on them as having been admitted in evidence before the master, or filed in the cause, but the minute-book has marked on it “Exhibit A,” the Stock Ledger “Exhibit B,” the Journal “Exhibit C,” the Ledger “Exhibit D,” and the Stock certificate stub book “Ex-Mbit E.” We tMnk the court committed an error in its ruling on the motion, and thereby excluding the books mentioned as a part of the record in the cause. If, as a matter of fact, the books had not been formally admitted in evidence, and the omission to do so was the result of inadvertence, or even carelessness of ■counsel, under the showing made they should have been admitted in evidence. The power of a court of ■chancery to correct such a mistake, and that it should toe exercised when necessary to the ascertainment of the real merits of a controversy, cannot be questioned.

But our conclusion, from what is shown by the record before us. is that the books mentioned were sufficiently introduced in evidence before the master to entitle, them to be considered as a part of the record in the case. The first witness, Thomas H. Maxey, who testified in reference to the books, was examined on interrogatories before a master. The books marked .as exhibits had been placed in the hands of the master preparatory lo the examination of the witness, and the interrogatories propounded referred to the books as exhibits. The books were shown the witness and he referred to them in his testimony as exhibits. In the examination of Greorge R. Foster the same books were shown to him as exhibits to the testimony of Maxey, and F. P. Fleming, the other witness who testified in reference to the books, and who was counsel for complainants, says that he had examined the books in evidence marked exhibits A, B, O, D and E, and that he had placed them in the hands of the master prior to the examination of Maxey. The master’s certificate shows that the books were shown the witnesses as exhibits, designated by letters, and the testimony clearly identifies the books as exhibits about which the witnesses testified. Counsel for defendants did not question the identity of the books, and w& think there is no room for doubt as to this. Counsel regarded the books as in evidence during the examination of the witnesses as to their identity and as to-entries therein, and the master retained them and sent them with the testimony of the witnesses to the court for final hearing. In our judgment the court erred in not considering the books as introduced in evidence-before the master, and in’ excluding them from the record of the ruling made. It is not claimed that they were not relevant to pertinent testimony in the case, and the pleadings indicate that they were. The objection raised to the books as evidence is, that they were-not in fact put in evidence before the master. 3 Greenleaf on Evidence, sec. 308, note 3, Fifth Edition; Dodge v. Israel, 4 Wash. 323.

Counsel for appellants contend further that the case-should be considered by this court on the record, including the books sent up under the order of the judge for our inspection. Conceding that this court should pass upon the case, if proper to do so, we do-not see how we can consider the’ books as a part of the record on the transcript before us. As a matter of fact no part of the contents of the books appears in the record certified to us, and we can not know therefrom what said books contain. We conclude from the action of the court in refusing to admit the books in evidence that they were considered as forming no part of the record of the cause in the court below, and the-clerk has not certified in the transcript sent up any portion of the contents of said books. It is provided by the 9th rule of practice of this court that "whenever the Circuit Judge shall deem it necessary or proper that an original paper or record shall be inspected by the Supreme Court, he may orlerthe same to be transmitted in such manner as shall seem proper, and this court will in that case consider such original in connection with the transcript of the proceedings.” Such original papers and records when properly transmitted to this court for inspection may be examined for the purpose of explaining or developi ng the true meaning of papers or records copied in the transcript, and which can not be set forth in copy as fully and truly as by the originals, but the rule does not contemplate that such original records or papers, forming no part of the record of a cause in the lower court, can be incorporated into the transcript of the record here by sending them up under an order for our inspection. As no part of the contents of the books mentioned are incorporated into the record certified to us, it is not proper that we should consider the original books sent up for inspection as any part of the evidence in the case.

A disposition of the case on the record before us without any reference to said books would deprive appellants of the benefit of testimony to which they are entitled, and which they tried to have the lower court consider on the final disposition of the case, but which was denied to them by the erroneous ruling of the court on the motion.

Without expressing any opinion as to the merits of this case, we deem it proper, in view of the erroneous ruling of the court in refusing to consider the books referred to as evidence in the case, to reverse the decree appealed from, with directions that said books be admitted in evidence and considered by the court in connection with the other evidence in the disposition of the case. An order will accordingly be made reversing the decree appealed from, with directions for further proceedings as herein indicated.