MARION OLIVER, PLAINTIFF IN ERROR,
v.
THE STATE OF FLORIDA, DEFENDANT IN ERROR
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Marion Oliver was convicted in a bastardy proceeding and ordered to pay $500 for child support. He appealed, arguing the justice of the peace lacked jurisdiction because the child was conceived and born in a different justice district than where the complaint was filed. The Florida Supreme Court affirmed, holding that assertions of fact in a motion for new trial are not self-substantiating and must be supported by evidence in the record.
The court affirmed the judgment, holding that even assuming the jurisdictional argument was correct, the record contained no evidence substantiating the factual assertions in Oliver's motion for new trial regarding where the child was conceived and born. The court established that assertions of fact in a motion for new trial are not self-substantiating and must be supported by evidence presented in the trial transcript.
“It is settled law here that the assertions of fact in a motion for new trial are not self substantiative.”
Establishes the core legal principle that factual assertions in motions for new trial must be supported by evidence, not merely asserted.
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Join FLexlaw to unlock all legal intelligenceE.E., a single woman, filed a complaint before a justice of the peace in Duval county's nth justice district, swearing that she was unmarried, had bee…
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Taylor, J.
— The. plaintiff in error was arrested upon a warrant in bastardy proceedings issued by the justice of the peace, in and for the nth justice’s district of Duval county, on the complaint of one E. E., a single woman, who made oath before such justice that she was a single woman and was delivered of a child who by law would be deemed and held a bastard, and that the plaintiff in error is the father of said child. Upon such proceedings and the issues joined thereon in the circuit court of Duval count}*, the plaintiff in error Was tried before a jury who returned a verdict of “guilty” upon which the circuit judge entered a judgment against the defendant in favor of the state of Florida for the use and benefit of the said E. E. for the support and maintenance of such bastard child in the aggregate sum of five hundred dollars payable in annual installments of $50 per year for ten years. The'defendant brings this judgment here for review by writ of error. Among others, the defendant moved for a new trial, upon the ground: “that the testimony herein shows that the bastard child was born and the mother thereof conceived such child in a justice district of Duval county, Florida, other than the justice district in which said complaint originated, and it appears that the justice of the peace issuing said warrant was without jurisdiction.” The motion for new trial was denied and this ruling is assigned as error. The only contention here is that the judgment of the circuit court is erroneous, null and void because the justice of the peace who issued the warrant for the initial arrest of the defendant was without jurisdiction to issue same for the reason that the mother of the bastard child in question did not conceive such child nor was delivered thereof within the district of the justice who issued such warrant, and that conseuently the circuit court that tried said cause was also without jurisdiction to entertain or adjudicate the same.
Even if this contention was a correct construction qf our bastardy statute, which we dq not now decide, there is nothing in the record before us that even tends to substantiate the facts asserted in the quoted ground of the motion for new trial, since none of the evidence adduced at the trial has been presented to us in the transcript filed here. For aught to the contrary shown by the record, the proceeding may have been initiated in the justice of the peace district in which the prosecutrix resided and in which she conceived and in which her delivery took place.
It is settled law here that the assertions of fact in a motion for new trial are not self substantiative. Parrish v. Pensacola & A. R. Co., 28 Fla. 251, 9 South. Rep. 696; American Lead Pencil Co. v. Wolfe, 30 Fla. 360, 11 South. Rep. 488; Garner v. State, 31 Fla. 170, 12 South. Rep. 638; Lovett v. State, 33 Fla. 389, 14 South. Rep. 837; Davis v. State, 35 Fla. 614, 17 South. Rep. 565; Roberson v. State, 40 Fla. 509, 24 South. Rep. 474; Gray v. State, 42 Fla. 174, 28 South. Rep. 53; Kennard v. State, 42 Fla. 581, 28 South. Rep. 858.
The asserted error not being made to appear cannot prevail; and no other error being presented or made to appear, the judgment of the circuit court in said cause is hereby affirmed, at 'the cost of the plaintiff in error. Hocker and Parkhill, JJ., concur;
Shackleford, C. J., and Cockrell and Whitfield, JJ., concur in the opinion.
Cases With Similar Vibessemantic neighbors from the corpus
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Cited By
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Britt v. State, 88 Fla. 482 (Fla. 1924)…y, the statement in a motion, is not self-supporting-in view of the ruling of the court denying it. The court’s order, however, shows the averments of fact to have been unsupported. See Gray v. State, 42 Fla. 174, 28 South. Rep. 53; Oliver v. State, 54 Fla. 93, 44 South. Rep. 712; [*488] Barnhill v. State, 56 Fla. 16, 48 South. Rep. 251; Lindsay v. State, 69 Fla. 641, 68 South. Rep. 932. The motion for a new trial contains twenty-four grounds; those numbered from fourteen to twenty-four inclusive attack…
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Miley G. Barnhill v. State, 56 Fla. 16 (Fla. 1908)…f the motion for a new trial, it is not sustained by affidavit or otherwise. A fact asserted in a motion for new trial is not self-substantiative before this court, but it must be authenticated otherwise in the transcript of record. Oliver v. State, 54 Fla. 93, 44 South. Rep. 712; Horne v. Carter, 20 Fla. 45. Therefore this assignment fails. The fourth, fifth and sixth assignments of error are based upon the refusal of the court to give the following instructions requested by the defendant: “First. - If…
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Taylor v. State, 117 Fla. 706 (Fla. 1934)…otion itself is not evidence of the facts it avers. It is not self-proving. See Tuberson v. State, 26 Fla. 472, 7 South. Rep. 858; Richardson v. State, 28 Fla. 349, 9 South. Rep. 704; Davis v. State, 35 Fla. 614, 17 South. Rep. 565; Oliver v. State, 54 Fla. 93, 44 South. Rep. 712; Lindsay v. State, 69 Fla. 641, 68 South. Rep. 932; Haynes v. State, 71 Fla. 585, 72 South. Rep. 180; Stewart v. Preston, 80 Fla. 473, 86 South. Rep. 384; Britt v. State, 88 Fla. 482, 102 South. Rep. 761; Gaines v. State, 97 Fla.…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Roberson v. State, 40 Fla. 509 (Fla. 1898)
- Gray v. State, 42 Fla. 174 (Fla. 1900)
- Parrish v. Pensacola & Atl. R.R. Co., 28 Fla. 251 (Fla. 1891)
- Kennard v. State, 42 Fla. 581 (Fla. 1900)
- The Am. Lead Pencil Co. v. F. A. Wolfe & Co., 30 Fla. 360 (Fla. 1892)
- Davis v. State, 35 Fla. 614 (Fla. 1895)
- Garner v. State, 31 Fla. 170 (Fla. 1893)
- Lovett v. State, 33 Fla. 389 (Fla. 1894)