Hoodless v. Jernigan

46 Fla. 213
CourtSupreme Court of Florida
DecidedJune 15, 1903
StatusPublished
Cited by82 cases

This text of 46 Fla. 213 (Hoodless v. Jernigan) is published on Counsel Stack Legal Research, covering Supreme Court of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hoodless v. Jernigan, 46 Fla. 213 (Fla. 1903).

Opinion

Shackleford, J.

W. L. Jernigan brought an action of ejectment in the Circuit Court of Santa Rosa county against John Hoodless for the recovery of a tract of land lying in said county described as the South half of Lot 2, in Section 2, Township 1 North, Range 28 West, containing about forty acres, and for mesne profits. The defendant pleaded not guilty -and trial was had, which resulted in the following verdict being rendered by the jury in favor of the plaintiff October 7, 1901. “We the jury find that the plaintiff is entitled to the lands in dispute, to-wit: S. x/¿ of Lot 2, Tp. 1 N., R. 28 West, containing 40 acres, more or less, and assess plaintiff’s damages at $25.00.”

Upon said verdict the following judgment was entered by the court October 11, 1901: “Therefore, it is considered by the court that the plaintiff do have possession of said land as described and that he do have and recover of and from the said defendant the said sum of twenty-five dollars as his damages and the further sum of $33.13 as his costs in his behalf expended in and about this suit and that he do have execution and writ of possession therefor.”

The defendant below, who is plaintiff in error here, seeks reversal by writ of error and has assigned six errors.

The first assignment is that “the court erred in admitting the certified copies of the minutes of the court reestablishing the execution under which the land in question was sold to Woods under which sale plaintiff deraigned.”

The ordinary bill of exceptions discloses that the plain[217]*217tiff offered in evidence as an entirety certified copies of the minutes of said court containing copies of judgments recovered in said court by Joseph Gundersheimer and Louis Shields, partners under name and style of J. Gundersheimer & Co., as plaintiffs, and by Abram. Forsheimer and Gerson Forsheimer, partners under firm name and style of A. & G. Forsheimer, as plaintiffs, against William L. Crigler, George F. C. Batchelder, Thomas Murry and John C. Pooley, partners under firm name and style of Crigler, Batchelder and Pooley, as defendants, copies of the executions issued on said judgments and copies of orders made by Hon. Homer G. Planz, then Judge of said court, on the 13th day of October, A. D. 1870, in open court, reciting therein the loss of said original judgments and executions by fire and ordering that said copies be established in lieu thereof, and that plaintiffs have the same rights thereunder as they would have had under the originals. The only objections interposed by defendant to the introduction of the certified copy of said minutes in evidence were “because they are not the executions under which the lands were sold,” and “because they are only copies of the minutes of the court re-establishing the judgments and executions.” .

As said by this court in Carter v. Bennett, 4 Fla. 283, text 338, quoting with approval the Supreme Court of New York as being in perfect agreement with the Supreme Court of the United States, “a party who objects to evidence or the competency of witnesses should state specifically the grounds of his objections. It is not sufficient to object generally that the evidence is illegal, or the witness is incompetent; but the party objecting must put his finger upon the very point, to apprise the court and his adversary of the precise objection he intends to make.”' Also see Gladden v. State, 12 Fla. 562; Withers v. Sandlin, 36 Fla. 619, text 622, 18 South. Rep. 856; Edwards v. State, 39 Fla. 753, 23 South. Rep. 537; Kirby v. State, 44 Fla. 81, 32 South. Rep. 836. No objection can be urged in the appellate court to [218]*218the evidence given in the court below, except as to its sufficiency, unless objection was there made when it was received. Tuten v. Gazan, 18 Fla. 751; Johnston v. State, 29 Fla. 558, 10 South. Rep. 686; McSwain v. Howell, 29 Fla. 248, 10 South. Rep. 588; Summerlin v. Thompson, 31 Fla. 369, 12 South. Rep. 667; Burlington Ins. Co. v. Miller, 8 C. C. A., 612, 60 Fed. Rep. 254, where the reason for the rule is very forcibly stated by Judge Thayer; 1 Thompson on Trials, sec. 693.

We can not consider any objections to the admissibility of evidence, except such objections as were made in the court below, the plaintiff in error being confined here to the specific objections made in the trial court. Jacksonville T. & K. W. Ry. Co. v. Peninsular Land, Transp. & Manuf’g Co., 27 Fla. 1, 9 South. Rep. 661; Summer v. Mitchell, 29 Fla. 179, 10 South. Rep. 562; Sullivan v. Richardson, 33 Fla. 1, text 112, 14 South. Rep. 692; Camp v. Hall, 39 Fla. 535, text 570, 22 South. Rep. 792; Florida Cent. & P. R. Co. v. Foxworth, 41 Fla. 1, 25 South. Rep. 338; Wallace v. State, 41 Fla. 547, text 572, 26 South. Rep. 713; Brown v. State, 44 Fla. 28, 32 South. Rep. 107; Lavarence v. State, 45 Fla. 42, 34 South. Rep. 87; Ferrell v. State, 45 Fla. 26, 34 South. Rep. 220; Brown v. State, 46 Fla. 159, 35 South. Rep. 82; 8 Ency. Pl. & Pr. 223; Abbott’s Trial Brief, Civil Jury Trials (2nd ed.), 242; 1 Thompson on Trials, secs. 693, 698, 843. In actions at law the party objecting to the introduction of evidence must not only state specifically the grounds of his objections thereto, as set forth above, seasonably except thereto, and base his assignment of error upon the objections as made in the court below and upon the ruling thereon, but must argue the assignment as made in this court. Dell v. Marvin, 41 Fla. 221, 26 South. Rep. 188. Other authorities will be cited upon this point later on in this opinion. The only exception to the rule that errors not assigned or not argued will not be considered by this court is where a jurisdictional or other fundamental error [219]*219is apparent on the face of the record itself. Parker v. Dekle, 46 Fla. supra, 36 South. Rep. 4.

Considering this assignment in the light of these authorities, what have we before us? At a glance, it is seen that there is a variance between the objections made in the court below and the error as assigned. The assignment admits that the certified copy of the minutes contains a copy of the executions as re-established under which the sale was made. The sole question presented then and argued here is, did the court below err in admitting the certified copy of said minutes re-establishing said executions? No assault was made in the court below or is attempted to be made here upon the correctness of said judgments and executions, upon the orders re-establishing same or the authentication of same. It must also be remembered that said minutes were offered as an entirety and the only error complained of here is as to their admission in evidence because they contained copies of the executions as re-established. It is, therefore, tacitly conceded by plaintiff in error that said minutes were properly admitted so far as the judgments and orders of re-establishment are concerned. It is further conceded that the lands were sold under the executions as reestablished. This court has decided that where part of a witness’ answer to a question is admissible and part inadmissible, a motion to strike such answer is properly refused unless it is confined specifically to the inadmissible part of such answer. Higginbotham v. State, 42 Fla. 573, 29 South. Rep. 410; Johns v. State, 46 Fla. 153, 35 South. Rep. 71; Fields v. State, 46 Fla. 84, 35 South. Rep. 185.

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Bluebook (online)
46 Fla. 213, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hoodless-v-jernigan-fla-1903.