44 Fla. 743 | Fla. | 1902
This cause was referred by the court to two of its commissioners, Messrs. Maxwell and Glen, for investigation, who report that that judgment of the Circuit Court ought to be reversed unless a remittitur is entered by the defendant in error, as hereinafter stated.
On March 27th, 1888, defendant in error instituted an action of replevin against the plaintiffs in error in the Circuit Court of Alachua county, to recover certain horses, buggies, carriages, &c., alleged in the affidavit to be of the value of $1;500. The property was redelivered to defendants upon their forthcoming bond. The declaration, subsequently filed, averred that defendants on the
One brown horse, name' Colt, valued at........$ 175 00
One bay horse, called the Dupree horse, valued at 125 00
Two gray horses named Joe and Bob, valued at. 125 00
'One mare named Mary, valued at.............. 200 00
One bay horse named Sealim, valued at...... 175 00
Three top buggies, valued at.................. 195 00
One three-seated hack, valued at.............. 65 00
Two carriages, valued at.................... 200 00
One one-horse wagon, valued at............... 40 00
Three saddles and bridles, valued at......"..... 15 00
Four sets single harness, valued at............ B0 00
Three sets double harness, valued at........... 50 00
$1,670 00
The total amount sixteen hundred and seventy dollars with interest at eight per cent, per annum from date of •dispossession, March 25th, 1888, up to present date.”
Prior to the rendition of judgment the plaintiff moved to amend his declaration so as to allege the value of the property to be $1,700, and also to increase the damages claimed to $3,000, which motion was granted, and the amendments duly made. A motion of defendants for a new trial was denied, and likewise a motion in arrest of
I. The first assignment of error alleges error in permitting- the following question to be propounded to W. M. Knox, the plaintiff: “State what income, net, you were realizing from the property sued for on the 25th day of March, 1888?” The witness answered “I was receiving about $5.00 a day net.” It appears from the verdict rendered by the jury that the only element of damage found by them was interest upon the value of the property from the time it was taken. They allowed nothing whatever for loss of profits upon its use. It affinnatlvely appears, therefore, that the defendants were not prejudiced by the ruling here complained of, even if erroneous, as it in no way affected the verdict.
II. The second and third assignments of error are argued by counsel for plaintiffs in error together. Plaintiff was asked the following question on direct examination : “Did the defendants on or about the ,25th of March, 1888, obtain possession of any other property belonging to you besides that described in the declaration of this case? If so, state all the facts showing when, where and under what circumstances.” This question was answered by the witness as follows: “He did obtain other property in the same manner and at the same time that he took the property described in the declaration.
III. The fourth assignment of error alleges error in permitting the introduction in evidence, in rebuttal, of the bill in a chancery suit of A. G. Hester against W. M. Knox and G. D. Younglove & Hon, the answer of G. D. Younglove & Hon thereto, and a cross-bill filed by them in said suit against Hester and Knox. The suit on trial was instituted on March 27th, 1888, and it w'ould seem from the abstract that Hester’s bill was not filed before before' December 27th, 1888. The bill sought foreclosure of a mortgage alleged to have been made by Knox to Hester on-December 21st, 1887, embracing “seven head of horses, twro carriages, one hack, three buggies and harness and outfit for the same” as well as a certain parcel of land, securing an alleged indebtedness of $1,000 and interest. It alleged the execution of a prior mortgage on July 20th, 1887, by Knox to G. D. Younglove & Son, to se-. cure the sum of $437.77, including the property mortgaged to Hester; that the last mentioned.mortgage had been paid in full, but that on March 25th, 1888, G. D. Young-love & Son took forcible and unlawful possession of the property included in complainant’s mortgage, without the consent of Knox or complainant, and continued to retain the same. The bill contained other allegations not mate
IV. The fifth assignment of error alleges error in refusing to strike out and exclude the proceedings referred •to under the preceding assignment, and some other testimony, but the abstraed does not show that a motion to •strike such evidence was made.
V. The sixth, seventh, eighth, ninth, tenth, eleventh and thirteenth assignments of error relate to charges given or refused, but in no case does any statement of facts appear as a predicate for any charge so given or refused, and for that reason none of these assignments can be considered. Jacksonville St. R. C. v. Walton, 42 Fla. 54, 28 South. Rep. 59; Burt v. Florida Southern Ry. Co., 43 Fla. 339, 31 South. Rep. 265. Besides, the abstract does not purport to give us ail the charges of the court, but only those that were excepted to; nor does it show that the refused instructions were not embraced in the charges actually (given. It does appear from the abstract that other instructions were given. Under these circumstances this court would he bound to presume that
YL The twelfth assignment of error is as follows “The Circuit Judge erred in giving to the jury the written charge and instructions of the court, numbered 1, 2, 5, G & 7.” This assignment is general, alleging error in giving five several instructions. These instructions assert separate and distinct propositions of law, and according to the practice prevailing in this State, as announced in numerous decisions, if one or more of them are found to have been properly given, the assignment of error as here framed must fail. The second instruction, to the effect that to enable plaintiff to recover it must appear from the evidence that he was entitled to the possession of the property sued for, or some of it, at the time the suit was brought, announces a correct proposition of law applicable to the case, and the court did not err in giving it. Holliday v. McKinne, 22 Fla. 153. This conclusion disposes of the twelfth assignment of error under the rule above announced.
VIT. The fourteenth assignment of error is that the court erred in denying defendants’ motion for new trial. The first twelve -grounds of the motion are not argued, except with reference to previous specific assignments of error already disposed of, and need not be further considered. The thirteenth ground is. that the verdict is excessive and greater than the amount sworn to by plaintiff in his replevin affidavit. This ground may be considered in connection with the fifteenth assignment of error which presents the same question, and the sixteenth, which questions the ruling of the court permitting an
The remaining grounds of the motion, except the sixteenth which is not argued, would require for their con- . sideration reference to an evidentiary bill of exceptions, ■ and the abstract does not undertake to abstract the evidentiary bill of exceptions, or set forth its contents in ’such a manner as to enable this court to consider it under the rules.
VIII. What has been said in the sixth paragraph of this opinion covers all the ¡mints presented under the remaining assignments of error.
The judgment will be reversed and a new trial granted, unless the defendant in error, within thirty days after the filing of the mandate in the court below, shall file ’therein a remittitur, electing to rely on his judgment for the value of the property and damages, and waiving his ' right to sue out a writ of possession for the property, and remitting from the amount awarded in said judgment as the value of the property the sum. of §170, and from the amount awarded as damages for the detention thereof, interest on said sum of §170 from March 25th, 1888, to May 12th, 1896; and as so modified the said judgment shall stand affirmed, if such remittitur is filed within said period. Defendant.in error must pay the costs of this «court.