THE SKINNER MANUFACTURING COMPANY, A CORPORATION, PLAINTIFF IN ERROR,
v.
LUM WRIGHT, DEFENDANT IN ERROR
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The Florida Supreme Court reversed a judgment for the defendant in an ejectment action, holding that a demurrer to the evidence was improperly sustained because the defendant failed to reduce the evidence to writing on the record as required by established Florida law.
The court held that established Florida law requires the party demurring to the evidence must set forth on the record all evidence intended to be admitted thereby. If this is not done, the opposing party cannot be required to join in the demurrer, and even if joined voluntarily, the court cannot render judgment on the demurrer but must award a venire de novo.
“It is settled law in this court that the party demurring to the evidence must set forth on the record all of the evidence intended to be admitted thereby, and, if this is not done, the opposing party cannot be required to join, therein”
Establishes the fundamental requirement that a demurrer to the evidence must include all evidence on the record
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Join FLexlaw to unlock all legal intelligenceSkinner Manufacturing Company filed an ejectment action against Lum Wright in Santa Rosa County Circuit Court to recover possession of land and mesne …
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Shackleford, O. J.
This is an action of ejectment instituted by the plaintiff in error as plaintiff against the defendant in . error as defendant in the Circuit Court for Santa Rosa County to recover the possession of a ecrtain parcel of land and for mesne profits. At the close of all the plaintiff’s evidence the defendant filed what purported to he a demurrer thereto, the plaintiff objected to joining therein but the court made an order requiring it to do so, which the plaintiff then did, and after argument by the respective counsel the court made an. order sustaining the demurrer to the evidence and rendered a judgment in favor of the defendant. To this judgment the plaintiff took a.writ of error returnable to the present term. Three errors are assigned, based respectively upon the order requiring the plaintiff to join in the demurrer to the evidence, the order sustaining the demurrer and the order overruling the plaintiff’s motion for a new trial.
The demurrer in question was as follows:
“The defendant demurs to the evidence in this case and for ground of demurrer says that it is insufficient to war rant the finding of a verdict or the rendition of a judgment in favor of the plaintiff.”
We are of the opinion that all the errors are well assigned.
It is settled law in this court that the party demurring to the evidence must set forth on the record all of the evidence intended to be admitted thereby, and, if this is not done, the opposing party cannot be required to join, therein, and, even if he should join therein voluntarily, the court can give no judgment upon the demurrer, but must award a venire de novo. See Higgs v. Shehee, 4 Fla. 382; Morris v. McKinnon, 12 Fla. 552; Hinote v. Simpson & Co., 17 Fla. 444; Hanover Fire Insurance Co. v. Lewis, 23 Fla. 193, 1 South. Rep. 863; Duncan v. State, 29 Fla. 439, 10 South. Rep. 815; Wilkinson v. Pensacola & Atlantic R. R. Co., 35 Fla. 82, 17 South. Rep. 71; Fee v. Florida Sugar Manufacturing Company, 36 Fla. 612, 18 South. Rep. 853; Holland v. State, 39 Fla. 178, 22 South. Rep. 298; Ingram v. Jacksonville St. R. R. Co., 43 Fla. 324, 30 South. Rep. 800; Lowe v. State, 44 Fla. 449, 32 South. Rep. 956, S. C. 103 Amer. St. Rep. 449; Mugge v. Jackson, 50 Fla 235, 39 South. Rep. 157; Atlantic Coast Line R. R. Co. v. Dexter, 50 Fla. 180, 39 South. Rep. 634 Also see Gould’s Pleading (5th ed.) 446 et seq.; Gibson and Johnson v. Hunter, 2 H. Blackstone, 187, text 205 et seq, 6 Ency. of Pl. & Pr. 446 et seq.
None of the evidence in the instant case, which was partly documentary and partly parol, was reduced to writing, and no facts were admitted or stated on the record by the demurrer. Further discussion is unnecessary. The judgment must be reversed, and it is so ordered, at the cost of the defendant in error. Cockrell and Whitfield, JJ., concur. Taylor and Hocker, JJ., concur in the opinion.
Parkhill, J., disqualified.
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Citator
Cited By
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Brown v. Markham, 56 Fla. 202 (Fla. 1908)…court sustaining it, and directing a verdict for the defendant. The motion of the defendant is in no sense a demurrer to the evidence. It does not contain the evidence as such a demurrer must necessarily do. See Skinner Manufacturing Co. v. Wright, 51 Fla. 324, 41 South. Rep. 28, and authorities there cited: It is nothing more than a motion for a peremptory verdict. [*208] The first four assignments of error based on the action of the trial court in refusing to allow the plaintiff to answer certain questi…
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Sullivan v. Brown, 67 Fla. 133 (Fla. 1914)…f the evidence it can be fairly considered as tending to support the plaintiff’s case. See Mugge v. Jackson, 50 Fla. 235, 39 South. Rep. 157; Atlantic Coast Line R. Co. v. Dexter & Conner, 50 Fla. 180, 39 South. Rep. 634; Skinner Mfg. Co. v. Wright, 51 Fla. 324, 41 South. Rep. 28; Atlantic Coast Line R. [*137] Co. v. McCormick, 59 Fla. 121, 52 South. Rep. 712; Holland v. The State, 39 Fla. 178, 22 South. Rep. 298; Fee v. Florida Sugar Manuf’g. Co., 36 Fla. 612, 18 South. Rep. 853; Hanover Fire Ins. Co. v.…
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Comforter v. City of Apalachicola, 63 Fla. 113 (Fla. 1912)…s conclusion, it is neither advisable nor proper for us to comment upon the evidence. We are likewise precluded from considering and discussing the interesting questions which are argued before us. We would refer also the Skinner Mfg. Co. v. Wright, 51 Fla. 324, 41 South. Rep. 28; Loeffler v. City of West Tampa, 55 Fla. 276, 46 South. Rep. 426; Atlantic Coast Line R. R. Co. v. McCormick, 59 Fla. 121, 52 South. Rep. 712; and authorities therein cited. Judgment reversed, Whitfield, C. J., and. Taylor, Cock…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (12 total)
- Lon Holland v. State, 39 Fla. 178 (Fla. 1897)
- Duncan v. State, 29 Fla. 439 (Fla. 1892)
- Wilkinson v. Pensacola & Atl. R.R. Co., 35 Fla. 82 (Fla. 1895)
- Atl. Coast Line R.R. Co. v. Dexter, 50 Fla. 180 (Fla. 1905)
- Mugge v. Jackson, 50 Fla. 235 (Fla. 1905)
- Morrison v. McKinnon, 12 Fla. 552 (Fla. 1868)
- Higgs v. Shehee, 4 Fla. 382 (Fla. 1852)
- Lowe v. State, 44 Fla. 449 (Fla. 1902)
- Fee & Nesbitt v. Fla. Sugar Mfg. Co., 36 Fla. 612 (Fla. 1895)
- Hinote v. Simpson & Co., 17 Fla. 444 (Fla. 1880)