Lasseter v. Zapf

57 Fla. 89 | Fla. | 1909

Per Curiam

A writ of error was taken to an order made by the Judge of the Seventh Judicial Circuit in vacation denying a motion to strike from the records of the court a judgment asserted in the motion to be void. The only error assigned is the order denying the motion: to strike the judgment. A motion is made to strike the bill of exceptions because it was not legally signed by the judge. The motion to strike the judgment and the order made thereon with the exception taken should be presented to the appellate court for review by a duly authenticated bill of exceptions. The purported bill of exceptions in the transcript does not appear to have been authenticated by the judge when the order denying the motion to strike the judgment was denied or afterwards by virtue of a special order then made extending the time for authenticating the bill of exceptions as required by Rule 97 of the Circuit Court Rules and the motion to strike the bill of exceptions is granted.

Where the bill of exceptions appearing in a transcript of the record has not been duly authenticated by the trial judge as required by the rules of court it will upon motion, be stricken from the record of the appellate court; and in such case, if there is in the remaining record no other question or matter assigned, presented or urged as error except such as can be presented or considered only through a proper bill of exceptions, the judgment will be affirmed. Horn v. State, 40 Fla. 472, 24 South. Rep. 147; Florida Cent. & P. R. Co. v. St. Clair-Abrams, 35 Fla. 514, 17 South. Rep. 639; Bardwell v. State, 49 Fla. 1, 38 South. Rep. 511.

As the only error assigned cannot be considered without a proper bill of exceptions and as there is no such bill in the transcript the order to which the writ of error issued is affirmed.

All concur except Parkhill, J., who took no part.