51 Fla. 324 | Fla. | 1906
This is an action of ejectment instituted by the plaintiff in error as plaintiff against the defendant in . error as defendant in the Circuit Court for Santa Rosa County to recover the possession of a ecrtain parcel of land and for mesne profits. At the close of all the plaintiff’s evidence the defendant filed what purported to he a demurrer thereto, the plaintiff objected to joining therein but the court made an order requiring it to do so, which the plaintiff then did, and after argument by the respective counsel the court made an. order sustaining the demurrer to the evidence and rendered a judgment in favor of the defendant. To this judgment the plaintiff took a.writ of error returnable to the present term. Three errors are assigned, based respectively upon the order requiring the plaintiff to join in the demurrer to the evidence, the order sustaining the demurrer and the order overruling the plaintiff’s motion for a new trial.
The demurrer in question was as follows:
“The defendant demurs to the evidence in this case and for ground of demurrer says that it is insufficient to war
We are of the opinion that all the errors are well assigned.
It is settled law in this court that the party demurring to the evidence must set forth on the record all of the evidence intended to be admitted thereby, and, if this is not done, the opposing party cannot be required to join, therein, and, even if he should join therein voluntarily, the court can give no judgment upon the demurrer, but must award a venire de novo. See Higgs v. Shehee, 4 Fla. 382; Morris v. McKinnon, 12 Fla. 552; Hinote v. Simpson & Co., 17 Fla. 444; Hanover Fire Insurance Co. v. Lewis, 23 Fla. 193, 1 South. Rep. 863; Duncan v. State, 29 Fla. 439, 10 South. Rep. 815; Wilkinson v. Pensacola & Atlantic R. R. Co., 35 Fla. 82, 17 South. Rep. 71; Fee v. Florida Sugar Manufacturing Company, 36 Fla. 612, 18 South. Rep. 853; Holland v. State, 39 Fla. 178, 22 South. Rep. 298; Ingram v. Jacksonville St. R. R. Co., 43 Fla. 324, 30 South. Rep. 800; Lowe v. State, 44 Fla. 449, 32 South. Rep. 956, S. C. 103 Amer. St. Rep. 449; Mugge v. Jackson, 50 Fla 235, 39 South. Rep. 157; Atlantic Coast Line R. R. Co. v. Dexter, 50 Fla. 180, 39 South. Rep. 634 Also see Gould’s Pleading (5th ed.) 446 et seq.; Gibson and Johnson v. Hunter, 2 H. Blackstone, 187, text 205 et seq, 6 Ency. of Pl. & Pr. 446 et seq.
None of the evidence in the instant case, which was partly documentary and partly parol, was reduced to writing, and no facts were admitted or stated on the record by the demurrer.