Weeks v. Hays

55 Fla. 370 | Fla. | 1908

Taylor, J.

—The plaintiff in error as plaintiff below instituted his action of replevin against the defendant in error as defendant below in the circuit court of Suwanee county for recovery of possession of two mules and one wagon and its harness. The cause by agreement was referred to and tried by a referee, and resulted in a judgment in favor of the defendant below, and the plaintiff brings it here for review by writ of error.

As proof of right to recover the property sued for the plaintiff without objection from the defendant, introduced in evidence the following document:

“Live Oak, Fla., June 23, 1906.

$550.00. On the 1st day of Sept. 1906, I promise to pay J. W. Weeks, or bearer, the sum of five hundred and fifty dollars with 10 per cent, interest from date, for value received, for the purchase price of one black horse mule, one black mare mule and one Tennessee Wagon and harness and it is further agreed that all right and title to above described property shall remain vested in Florida Live Stock and Vehicle Company until this note and all interest and cost of collection, including 10 per cent, attorney’s fees is paid in full—further agree to waive all homestead exemptions under the laws of Florida.

R. F. Hays (Seal.)”

(Endorsed on back of note.)

“Aug. 13, —06. By cash $200.00.”

The plaintiff after introducing the above paper offered to prove by his own testimony and by the testimony of one S. B. Conner that the name of the “Florida Live Stock and Vehicle Company” was left in said paper through inadvertence and mistake. That the paper was a printed form used by said Florida Liye Stock and Vehicle Company in their own transactions, and that in this transaction between Weeks and Hays one of said printed forms was procured and used, and that Conner who filled out the form erased therefrom the printed name of said company where it first occurred in said form and substituted the name of Weeks in lieu thereof, and that he intended to erase the name of said company where it again and' now appears in said paper and to insert in lieu thereof the name of Weeks, but overlooked it and left the name of said company printed in said paper as it now appears therein through mistake and oversight. That said Florida Live Stock and Vehicle Company had ■no interest in or claim to said paper or to the property described therein, but that the same was owned wholly by the plaintiff, Weeks. This evidence was objected to by the defendant, and upon such objection was excluded by the referee. This ruling constitutes the first and second assignments of error.

In the bill of exceptions contained in the transcript of record in the cause before us for review there are no exceptions to any of these rulings by the referee. From the establishment of this court down to the present time there is an unbroken line of decisions to the effect that where a party desires to have an appellate review of rulings of a trial court either admitting or excluding evidence he must except to such ruling at the time that it is made, otherwise no assignment of error predicated thereon can be considered by such appellate court. Union Bank of Florida v. Call 5, Fla. 409; Burroughs v. State, 17 Fla. 643; Pottsdamer v. State, 17 Fla. 895; Gallaher v. State, 17 Fla. 370; Waddell v. Cunningham, 27 Fla. 477, 8 South. Rep. 643; McSwain v. Howell, 29 Fla. 248, 10 South. Rep. 588; Hawkins v. State, 29 Fla. 554, 10 South. Rep. 822; Bogue v. McDonald, 14 Fla. 66; Tischler v. Apple, 30 Fla. 132, 11 South. Rep. 273; Coker v. Hayes, 16 Fla. 368; Walker v. State, 34 Fla. 167, 16 South. Rep. 80; Shepard v. State, 36 Fla. 374, 18 South. Rep. 773; Driggers v. State, 38 Fla. 7, 20 South. Rep. 758.

Copied into the record proper in the case there is an affidavit made by plaintiffs’ counsel asserting in effect that exceptions were in fact taken to these rulings, but that the referee did not so state in the bill of exceptions certified by him. This affidavit does not appear' to have been presented to the referee before he settled and signed the bill of exceptions, and it is not included in the bill of exceptions, but is simply copied into the transcript outside of the bill of exceptions. This affidavit, under these circumstances cannot be considered here for any purpose, but even if it could be, it is an attempt to impeach the verity of a bill of exceptions properly certified. By an unbroken line of decisions it is also well established here that a bill of exceptions containing the happenings in pais at the trial of a cause, that is duly authenticated by the certificate of the trial judge and included in a duly certified transcript of record imports absolute verity to an appellate court, and cannot be questioned, impeached, altered or varied in any manner before such appellate court, not even by the consent and agreement'of the opposing parties or their counsel. If it is improperly or incorrectly made up in the lower court, corrections must be made there, and the amended record brought up by certiorari. Gladden v. State, 12 Fla. 562, text 573; Robinson v. Miatthews, 16 Fla. 319; City of Jacksonville v. Lawson, 16 Fla. 321; Pine v. Anderson, 22 Fla. 330; Glasser, Kuder & Ottensoser v. Hackett, 38 Fla. 84, 20 South. Rep. 820; Bailey v. Clark, 6 Fla. 516; Sams v. King, 18 Fla. 552; Pickett v. Bryan, 34 Fla. 38, 15 South. Rep. 681; Florida Cent. & P. R. Co. v. St. Clair-Abrams, 35 Fla. 514, 17 South. Rep. 639; Mizell v. Travellers’ Ins. Co., 40 Fla. 148, 24 South. Rep. 148; Bryan v. State, 41 Fla. 643, 26 South. Rep. 1022.

The third assignment of error questions the correctness of the findings of fact by the referee.

The fourth assignment of error complains of the denial of the plaintiffs’ motion for new trial, and the fifth assignment of error complains of the rendition of final judgment in the defendant’s favor. In the absence of the excluded testimony the findings of the referee could not properly have been otherwise than they were, since the evidence before the referee showed that the plaintiff was seeking by his action of replevin to recover property shown by the proofs not to be owned by him but by a third party, and in which he was not shown to- have even a special interest, and it was not shown that he was entitled to the. possession thereof.

For the same reason there was no error in denying the plaintiff’s motion for new trial, nor in the rendition of final judgment for the defendant.

No error being made to appear the judgment of the circuit court in said cause is hereby affirmed at the cost of the plaintiff in error.

Hocicer and Parki-iill, JJ., concur;

Shackleford, C. J., and Cockrell and Whitfield, JJ., concur in the opinion.