McMillan v. Reese

61 Fla. 360
CourtSupreme Court of Florida
DecidedJanuary 15, 1911
StatusPublished
Cited by8 cases

This text of 61 Fla. 360 (McMillan v. Reese) 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
McMillan v. Reese, 61 Fla. 360 (Fla. 1911).

Opinion

Shackleford, J.

The defendant in error brought an action of unlawful entry against the plaintiff in error, which was tried before a jury and resulted in a verdict and judgment in favor of the plaintiff in the court below. This judgment is brought here for review by writ of error. Twenty-three errors are assigned, which present several interesting questions and -which are ably discussed by the counsel for the respective litigants, but, in view of the conclusion which we have reached, it becomes unnecessary to discuss all of the assignments.

The first assignment is that “the court erred in admitting in evidence the written agreement under seal sighed by Thomas C. Watson, Agent, and J. A. White, dated October 3rd, 1903.” White was the first witness introduced on behalf of the plaintiff, who testified in substance that he executed the instrument in question and went into the possession of the land in controversy thereunder, remained in possession four or five years, made certain specified improvements thereon, and went out of possession about three years before the trial, when he sold all of the buildings and improvements which he had put upon the land to the defendant; that he had paid rent under the instrument for several years, when he was forbidden to pay more by different parties and ceased to pay rent about two years [363]*363before he left, became, dissatisfied and sold his improvements to the defendant, but did not sell him any rights in the land. The instrument in question was then offered by the plaintiff in evidence, to the introduction of which the defendant objected on the grounds, “that no authority to execute the instrument, which is under seal, is shown in the agent who executed it; that plaintiff is not a party to the said instrument, nor does it purport to have been executed for his benefit, the party executing it not being his agent; because the instrument purports to be the contract ordered of an agent for the estate of a deceased person, and the instrument is invalid for that reason; and because said instrument is irrelevant and immaterial, and not within the issues in the case; and because said instrument does not purport to be that of a principal merely but of an agent.” All of these grounds of objection were overruled and the instrument admitted in evidence, to which ruling the defendant duly noted his exception. It may be well to state that such instrument was executed under seal by Thos. C. Watson, Agent, and J. A. White and purported to lease the land in controversy to White for the term of one year from September 1st, 1903, at the annual rent of twenty dollars, payable in advance, and provided that the lease could be renewed on the same conditions and terms from year to year until Yonge, the owner decided to sell the same, in which event White should have the first privilege of purchase, the price being fixed at $300.00. In the body of it Watson is described as “Agent of Estate of C. C. Yonge, deceased,” but it is executed by him simply as “Thos. Watson, Agt.” Section 2156 of the General Statutes of 1906 expressly provides, referring to the action of forcible entry, unlawful entry or unlawful detainer that “No question of title, but only a right of possession and of damages, shall be involved in the action.” We do not understand that the instrument in question [364]*364was introduced for the purpose of showing title in anyone to the premises in dispute, since the question of title was not and could not have been involved in the action. So far as we can gather from the bill of exceptions, aided by the briefs of the respective counsel, such instrument was offered and introduced for the purpose of showing that White, under whom the defendant claimed, based his right of possession to such premises thereunder and had entered into and remained in possession thereof as a tenant under such instrument until he sold his improvements on the land to the defendant. It may not have been readily apparent, at the stage of the trial when it Avas offered, just why the plaintiff should have wished to introduce such instrument in evidence, but, as we have repeatedly held, the tidal court is authorized to regulate the order of the introduction of eAÚdence, and its discretion in such a matter, either in receiving or rejecting it, will not be interfered Avith by an appellate court, unless an abuse of such discretion is clearly made to appear. Atlantic Coast Line R. Co. v. Partridge, 58 Fla. 153, 50 South. Rep. 634. Some of the grounds of objection urged may well have been good, if the question of title had been involved, as in an action of ejectment, and the instrument had been offered as a link in the chain of title, but as we have seen, -that was not the case. The general grounds of objection of irrelevancy and immateriality are unavailing, under our repeated holding that general objections to evidence proposed, without stating the precise grounds of objection, are vague and nugatory, and are properly overruled, unless it plainly appears that the proffered evidence is prejudicial, improper and inadmissible for any purpose. Atlantic Coast Line R. Co. v. Partridge, supra. As we likewise held in the cited case, the mere fact that proffered evidence is not full and complete Avithin itself but formed only one link in the chain, so that it would have to be supplemented by other [365]*365evidence in order to avail the party offering it, may not render such evidence incompetent or inadmissible. See also the discussion in Wilson v. Jernigan, 57 Fla. 277, 49 South. Rep. 44. As we held in Melrose Mfg. Co. v. Kennedy, 59 Fla. 312, 51 South. Rep. 595, papers not appearing to refer to the subject of litigation are properly excluded, but documents under which rights in litigation are claimed are properly admitted. We are of the opinion that this assignment has not been sustained.

The second assignment is that “the court erred in admitting the testimony of the witness, J. J. Hooton, as to the agency of Thos. C. Watson over the property involved in controversy at the time of leasing same to J. A. White.” We find that, after such witness had testified both on direct and cross-examination as to the agency of Thos. C. Watson, “the. defendant objected to and moved to strike the testimony of the witness as to the agency of Thos. C. Watson over the property upon the ground that it appeared that such agency was given by a power of attorney, which writing had not been produced. But the court overruled the objection and denied such motion, to which ruling the defendant did then and there except.” Objections to the admissibility of evidence must, as a general thing, be made when it is offered, or its admissibility cannot be assigned as error. Schley v. State, 48 Fla. 53, 37 South. Rep. 518, and Williams v. State, 58 Fla. 138, 50 South. Rep. 749.

The third assignment is that “the court erred in refusing to strike the testimony of the witness, J. J. Hooton, in the preceding assignment of error.” Immediately after the proceedings, which we have copied above, the following took place: “The witness was here asked by plaintiff’s counsel if there was a power of attorney to lease the property. The witness answered: ‘No; I think there may have been some years ago, but I don’t know what has become of [366]*366it.’ And the defendant did then and there again object to the testimony of the witness as to the authority of Thos. C. Watson, upon the ground that that authority was in writing, in the shape of a power of attorney, not produced. But the court overruled said objection, and admitted said testimony, to which ruling defendant did then and there except.” This constitutes the entire basis for the second and third assignments.

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