38 Fla. 162 | Fla. | 1896
The grounds of the motion insisted upon are: 1st. The said writ of error is not tested in the name of the Chief-Justice of this court as required by law. 3d. No copy of the transcript of the record has been served upon defendants in error, or their attorneys, or either of them, as required by the rules of this court. 4th. No abstract of the record has been served upon the defendants in error, or their attorneys, or either of them, as required by the rules of this court. 5th. The paper writings contained in the record purporting to be bills of exceptions are not in conformity with the rules of this court governing the preparation of such bills. 6th. The paper writings filed in this court
Upon the third and fourth grounds the plaintiffs in error admit that no service of the papers therein named has been made as required by the rules of this court, but claim that such service was waived by a verbal agreement between counsel for the respective parties. Affidavits have been filed by each parly upon the subject. Examining them, we do not think those offered by plaintiffs -in error sufficiently sustain the burden of proof which rests upon them. Properly speaking, the agreement being in reference to a cause before this court, should have been in writing and filed here, in'order for us to consider it or be governed by it in any manner. Steele vs. State, 33 Fla. 354, 14 South. Rep. 841.
The sixth ground — in regard to abstracts of the record on file in this court — is well taken. The paper purporting to be an abstract of the record is only a list of the papers filed in the case in chronological order, with some slight history of the proceedings in the case, and some slight allusions to the contents of
The record contains two papers; one of which purports to be the ordinary bill, and the other an evidentiary bill of exceptions. They both flagrantly violate the rules prescribed by this court as to the form and nature of bills of exception, and therefore could not be considered by us. We need not consider these supposed bills of exceptions as to the fault mentioned, for we find a more serious and fatal defect in them, which, without regard to the form in which they are prepared, prevents our taking them into consideration as a part of the record. The case was tried before a referee. He does not sign either of the bills of exceptions, and in a certificate attached to each stating his refusal so to do, places such refusal upon the ground, among others, in substance, that the bill as prepared and presented to him contained statements of proceedings before him which were not had and of exceptions being taken which were not taken at the trial. Following such certificate of the referee to each of the papers is the following: “State of Florida, County of DeSoto — We, and each of us, do hereby certify that the foregoing bill of exceptions was presented to Howard J. Spence, referee in said cause, on April the 9th, 1896, and that the said referee refused
Our conclusion is, that the plaintiffs in error be allowed thirty days in which to serve a copy of the transcript of the record, and to file and serve proper abstracts of such transcript; failing to comply with this order, that the writ of error be quashed and the cause do stand as dismissed without further order. In making such transcript and abstract the plaintiffs in error will not insert therein any matters appearing only in the papers purporting to be the bills of exceptions. They must be confined to the record proper.