Selph v. Cobb

49 Fla. 228

Opinion

Per Curiam.

This cause came' on to be heard before the court en banc, upon motion of the defendant, in error to dismiss the writ of-error. The second ground of this motion is, in substance, that no assignment of errors was presented to the judge at the time of the presentation or settlement of the bill of exceptions.

It appears from the certificate of the judge appended to the bill of exceptions that this ground of the motion is true. This omission is in direct violation of Special Rule One for the government of Circuit Courts in the preparation of bills of exceptions, which expressly provides that such assignment of errors so to be. presented to the judge shall be the guide for making up such bill of exceptions. The judge should have refused to sign such bill in the absence of such assignment of errors, and the violation of the rule in this respect is ground for dismissal of the cause. Florida, Central and Peninsular R. R. Co. v. Peacock, 44 Fla. 176, 33 South. Rep. 247; Southerland v. Sandlin, 44 Fla. 332, 32 South. Rep. 786.

Were there any assignments of error relied upon here based upon the record proper, we might visit the violation of the rule complained of upon the bill 'of excep tions alone by striking it from the record, but as there is no error assigned here except such as can be exhibited in and by a bill of exceptions, the writ of error must be dismissed, at the cost of the plaintiff in error, and it is hereby so ordered.

Whitfield, C. J., and Taylor, Hocker, Cockrell, Shackleford and Carter, JJ., concur.