Klein v. Nichols

District Court of Appeal of Florida

Klein v. Nichols

182 So. 2d 439, 1966 Fla. App. LEXIS 5900

CourtDistrict Court of Appeal of Florida

DecidedFebruary 4, 1966

DocketNo. 5373

StatusPublished

This text of 182 So. 2d 439 (Klein v. Nichols) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Klein v. Nichols, 182 So. 2d 439, 1966 Fla. App. LEXIS 5900 (Fla. Ct. App. 1966).

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Opinion

KANNER, Judge (Ret.)

An action in ejectment involving a boundary dispute was brought by plaintiffs-appellants, Sterling J. Klein and Marie T. Klein, his wife, against defendants-appel-lees, Judson H. Nichols and Estelle Nichols, his wife. Subsequent to rendition of jury verdict for the plaintiffs, the trial court, upon motion of the defendants, entered an order vacating the verdict and granting a new trial, subject of this appeal.

The court’s order states that the verdict was thereby set aside and motion for new trial granted on the ground “that the description contained in the verdict does not conform with any of the testimony of record or any description in the pleadings.” This was pursuant to specific findings contained in the order, as follows: “1. The description in the verdict is different from that in the amendment to the amended complaint; 2. The survey referred to in the verdict was not received in evidence; 3. There is no indication in the record that the survey referred to has ever been placed of record anywhere so that it could be definitely determined what is in it; 4. The testimony of the Surveyor, Mr. Hunt, with regards to a survey does not mention the description contained in the verdict. (The only description he mentioned was the one which is in the amendment to the amended complaint.)”

Statutory prescription for a verdict in ejectment is in section 70.05(1), Florida Statutes, F.S.A., which provides that “A verdict for the plaintiff shall state the [440]*440quantity of the estate of the plaintiff, and describe the land by its metes and bounds, by the number of the lot or other certain description.”

By the amendment to their amended complaint, plaintiffs relied upon a certain description¹, thus made the subject matter of the ejectment action. Upon examination of the verdict, it is clear that the description which it contains² is, as the court found, different from that alleged in the amendment to the amended complaint. This may be noticed, not only in the words and numerals used, but also the quantity of land described. Immediately following the description, the verdict concluded by stating that the plaintiffs “are entitled to the possession thereof as established by the survey of February 8, 1964, made by Truby W. Hunt, Registered Surveyor.” Thus, the jury determined that possession should be awarded to the plaintiffs by reason of the mentioned survey; yet the record reveals that no such survey was received in evidence, and this also was one of the findings of the trial court in its order.

In Goodno v. South Florida Farms Co., 1928, 95 Fla. 90, 116 So. 23, a case in ejectment, the Supreme Court of Florida pointed out that a verdict is the determination of a jury upon testimony submitted to them and should be construed with reference to the issue made by the pleadings. It further said that a verdict which does not determine the issue in accordance with the undisputed contention of either party is erroneous and should, upon proper application, be set aside. The fundament of the court’s order is that the description contained in the verdict does not conform with any of the testimony or any description in the pleadings. From our study of the testimony and pleadings, we are in accord with this determination.

Plaintiffs have not demonstrated to this court any abuse of discretion or error by the trial court; rather, the record sustains the court’s findings and reasons for setting aside the verdict and granting new trial. Its action in so doing is affirmed.

LILES, Acting C. J., and PIERCE, J.,. concur.

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KANNER, Judge (Ret.)

An action in ejectment involving a boundary dispute was brought by plaintiffs-appellants, Sterling J. Klein and Marie T. Klein, his wife, against defendants-appel-lees, Judson H. Nichols and Estelle Nichols, his wife. Subsequent to rendition of jury verdict for the plaintiffs, the trial court, upon motion of the defendants, entered an order vacating the verdict and granting a new trial, subject of this appeal.

The court’s order states that the verdict was thereby set aside and motion for new trial granted on the ground “that the description contained in the verdict does not conform with any of the testimony of record or any description in the pleadings.” This was pursuant to specific findings contained in the order, as follows: “1. The description in the verdict is different from that in the amendment to the amended complaint; 2. The survey referred to in the verdict was not received in evidence; 3. There is no indication in the record that the survey referred to has ever been placed of record anywhere so that it could be definitely determined what is in it; 4. The testimony of the Surveyor, Mr. Hunt, with regards to a survey does not mention the description contained in the verdict. (The only description he mentioned was the one which is in the amendment to the amended complaint.)”

Statutory prescription for a verdict in ejectment is in section 70.05(1), Florida Statutes, F.S.A., which provides that “A verdict for the plaintiff shall state the [440]*440quantity of the estate of the plaintiff, and describe the land by its metes and bounds, by the number of the lot or other certain description.”

By the amendment to their amended complaint, plaintiffs relied upon a certain description¹, thus made the subject matter of the ejectment action. Upon examination of the verdict, it is clear that the description which it contains² is, as the court found, different from that alleged in the amendment to the amended complaint. This may be noticed, not only in the words and numerals used, but also the quantity of land described. Immediately following the description, the verdict concluded by stating that the plaintiffs “are entitled to the possession thereof as established by the survey of February 8, 1964, made by Truby W. Hunt, Registered Surveyor.” Thus, the jury determined that possession should be awarded to the plaintiffs by reason of the mentioned survey; yet the record reveals that no such survey was received in evidence, and this also was one of the findings of the trial court in its order.

In Goodno v. South Florida Farms Co., 1928, 95 Fla. 90, 116 So. 23, a case in ejectment, the Supreme Court of Florida pointed out that a verdict is the determination of a jury upon testimony submitted to them and should be construed with reference to the issue made by the pleadings. It further said that a verdict which does not determine the issue in accordance with the undisputed contention of either party is erroneous and should, upon proper application, be set aside. The fundament of the court’s order is that the description contained in the verdict does not conform with any of the testimony or any description in the pleadings. From our study of the testimony and pleadings, we are in accord with this determination.

Plaintiffs have not demonstrated to this court any abuse of discretion or error by the trial court; rather, the record sustains the court’s findings and reasons for setting aside the verdict and granting new trial. Its action in so doing is affirmed.

LILES, Acting C. J., and PIERCE, J.,. concur.

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