38 Fla. 93 | Fla. | 1896
The records brought here by writ of error in the two causes above stated are substantially the same, so that what is said of the one applies equally as well to the other. In both cases motions are made to strike from the records so much of the transcripts filed here as embrace the bills of exceptions and the several assignments of error, and to dismiss the writs of error, upon the following grounds: 1. The said bills of exceptions were not settled as prescribed by law, no assignments of error having been presented or filed as required by
From the bills of exceptions contained in the transcripts of the record filed here it appears that two suits in attachment were instituted in the court below by the plaintiff in error as plaintiff below against the defendant in error as defendant below. That in each case the defendant filed a traverse to the plaintiff’s affidavit in attachment. That the plaintiff moved the court to strike from the files these traverse affidavits of the •defendant upon the grounds that they did not traverse any allegation of the plaintiff’s affidavits for attachments, and raised an immaterial issue, and because the •court had no jurisdiction to try or to direct thé trial of the issue, if any, raised by the defendant’s affidavits. 'That said motions to strike the defendant’s traverse affidavits were denied. That the plaintiff then demurred to the said traverse affidavits of the defendant upon the ground that they did not present any issue that the court was authorized to try. That these demurrers were overruled by the court. That the two -cases then came on for trial before the Circuit Judge, neither party demanding a jury, for dissolution of the attachments upon the defendant’s traverse affidavits. That at the trials the plaintiff declined to offer any .evidence upon the issue, upon the ground that the said issues tendered by the defendant’s traverse affidavits were not such as the court was authorized to try, and
The errors assigned here are as follows: 1. The court erred in refusing to strike out the traverse affidavits of the defendant on the ground that they did not deny any allegation in the affidavit for plaintiff, either as to the debt or sum demanded, or as to the special cause assigned in plaintiff’s affidavit. 2. The Circuit Court erred in overruling the demurrer of the plaintiff to the defendant’s traverse affidavit, on the ground that the said affidavit tendered no issue authorized by the statutes of Florida, and does not deny any allegation in the affidavit on behalf of the plaintiff, either as to the debt or sum demanded, or as to the special grounds assigned in the said plaintiff’s affidavit. 3. The court erred in overruling the objections of the plaintiff to the introduction of any testimony or evidence on its behalf on the trial of the issue tendered by the defendant’s traverse affidavit to the affidavit of plaintiff, on the ground that such traverse affidavit is not authorized by law, and tendered no issue which required the plaintiff to introduce any evidence in respect to it. 4. The court erred in granting a final order dissolving the attachment in this action. It is apparent from these assignments of error that a consideration of each and every of them necessitates the proper production to this court, and an inspection and consideration by it, of the affidavits filed, by’the plaintiff below for the writs of attachment, and also of the traverse affidavits filed by the defendant. The records brought here by the writs of error in these-
All of the assignments of error in these two cases being predicated upon the plaintiff’s initiatory affidavits in attachment and upon the defendants traverse affidavits, and having no proper evidence of these material records before us in the transcript brought here, it follows that we can not consider any of the •errors assigned. Where it is apparent from the tran•script of the record brought to an appellate court by writ of error that none of the matters questioned by "the errors assigned are so set forth and evidenced hy such transcript as that such court can properly recognize and consider them, the writ of error should be ■•dismissed.
There is a suggestion in the brief of the plaintiff in ■error on the motions to dismiss that if it be found that dhe transcripts do not properly exhibit or contain the