Mountain v. Roche

| Fla. | Jul 1, 1869

RAM.DALL, C. J.,

delivered the opinion of the court.

We are unable to determine from this record whether the coui’t erred in overruling the motion for a new trial, or upon what the ruling of the court was based, for the bill of exceptions does not disclose the testimony given on the trial, nor what charge or instructions were given to the jury by the court, nor that any objections or exceptions were made or taken during the trial by either party. Even the memoranda of testimony and the certificates upon the copies of the deeds do not show which party offered or used the supposed testimony or deeds.

This court has so frequently ruled that unless the record disclose so much of the proceedings as will show that an error was committed by the Circuit Cburt upon the trial, it must be intended that the ruling was correct, that it is unnecessary to repeat any discussion of the question. ¥e discover that the verdict was in accordance with the complaint, and conformable to the statute, and we have not properly before this court anything to inform us what intermediate proceedings were had.

In the case of Robinson vs. L’Engle, decided at the present term, it was held that the minutes of testimony kept by the clerk in pursuance of the constitution were not a part of the record, so far as to dispense with the necessity of incorporating the testimony in a bill of exceptions in order to bring it before this court for review.

The first and second points in the assignment of errors are, therefore, not sustained by the recor<|.

As to the third point, that the court overruled the defendant’s motion to summon a jury of twelve persons to assess the damages, waste, &c., we do not consider that the proceeding contemplated is applicable to a case of this eharacacter. It was stated in the argument that the motion was made under the provisions of “ an act for the relief of occupying claimants,” passed January 12,1849. This act provides “ that if any person or persons hath or have settled or improved, or shall hereafter settle or improve any lands in this State, supposing them his own by reason of a title in law or equity,” * * * * “but which lands shall prove to belong to another, the charge and value of such settling and improving, to be ascertained in the manner hereinafter mentioned, shall be paid by the right owner to such settler, improver, or his assignee or occupant so claiming.”

The act further provides that the court rendering judgment of eviction, or if in equity, rendering a decision against the occupant where suit has been brought by a party claiming a right to land in possession of another claiming the same under title as aforesaid, shall cause to be summoned twelve persons to act as jurors, “to make assessments of damages and waste committed, and of rents and profits accruing after judgment or decree rendered of the value of the improvements, and the land from which the occupant is to be evicted,” &c., all of which they are to report to the court for such further action as is provided in the act.

If this were a case to which this act is applicable, it might be a question whether the hill of exceptions does not come short of showing a state of facts entitling the appellant to a jury to make the inquest contemplated by the act. Bxxt we conceive that the proceeding, under the unlawful detainer act, does not involve the title of either party, or determine any right except that of the present possession. The act of 1848 contemplates a proceeding in which the conflicting titles of the respective parties shall be finally determined by the judgment or decree of a competent coux’t. The present case is not one in*which the lands, of which one party supposed himself to have a title in law or in equity, have been adjudged to belong to the other asa “right owner,” and therefore the appellant was not entitled to require the assessment of damages, value of improvements, &c., and the ruling of the court was therefore proper.

There being no error apparent in the record, the judgment of the Circuit Court must be affirmed.