WILLIAM M. FALK ET AL., PLAINTIFFS IN ERROR,
v.
A. J. KIMMERLE ET AL., DEFENDANTS IN ERROR
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In this contract action for goods sold and money due, the jury verdict of $216.23 was challenged on two grounds: the admission of leading questions to commission witnesses and exclusion of testimony about New York jobber discount customs. The Florida Supreme Court affirmed, holding that trial court discretion over leading questions is not reviewable and that the relevance of the custom evidence was not adequately demonstrated.
The trial court did not err. The discretion of the trial court to permit leading questions is not reviewable on writ of error. The exclusion of testimony regarding New York jobber customs was not erroneous because the relevancy and materiality of such testimony was not adequately made to appear from the pleadings.
“it is within the discretion of the trial court to permit leading questions, and the exercise of that discretion is not reviewable on writ of error”
Establishes the core principle that trial court discretion regarding leading questions is not subject to appellate review.
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Join FLexlaw to unlock all legal intelligencePlaintiffs sued defendants in assumpsit for $257.21 in goods bargained and sold, plus interest, and for an equal amount on account stated. Defendants …
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Shackleford, J.
This is an action of assumpsit instituted by the defendants in error against the plaintiffs in error, the declaration containing two counts, one in the sum of $257.21, with interest, for goods bargained and sold by the plaintiffs to the defendants, and the other for a like sum for money found to be due from the defendants to the plaintiffs “on accounts stated between them,” the damages being laid at $500.00. The plea filed by the defendants was “that they never were indebted as alleged except in the sum of $198.43.” The case was submitted to a jury upon the issues as made by the pleadings and a verdict was rendered in favor of the plaintiffs for the sum of $216.23 with interest-thereon at the rate of eight per cent, per annum from the 23rd day of April, 1907. Final judgment was entered by the court*in accordance with the verdict, which judgment the defendants seek to have reviewed here by writ-of error. No point is made on the pleadings, and only two errors are assigned, each of which is based upon the testimony. It may be well to state right .at the outset -that all of the evidence is not brought before us.
The first assignment is based upon the overruling of-the objection of defendants to an interrogatory addressed to two witnesses of plaintiffs, whose testimony was taken upon a commission which, the plaintiffs had sued out. We find that the objection was interposed before the issuance of the commission, and that the only ground of objection was that the interrogatory in question was leading. This court has frequently held, in both civil actions and criminal prosecutions, that it is within the discretion of the trial court to permit leading questions, and the exercise of that discretion is not reviewable on writ of error. See Coker v. Hayes, 16 Fla. 368; Southern Express Co. v. VanMeter, 17 Fla. 783, S. C. 35 Amer. Rep. 107; Anthony v. State, 44 Fla. 1, 32 South. Rep. 818; Schley v. State, 48 Fla. 53, 37 South. Rep 518; Reyes v. State, 49 Fla. 17, 38 South. Rep. 257; Seaboard Air Line Ry. v. Smith, 53 Fla. 375, 43 South. Rep. 235. Still other decisions of this court may be found in the cases cited. This assignment is without merit.
The second assignment is as follows: “The court erred in refusing to permit the defendant, William Falk, to testify in regard to custom between -jobbers in New York and their customers in regard to allowance of discount of one (1) per cent, in event of payment being made more than thirty (30) days in advance of the time when, under the terms of sale, such payment was required to be made.” As we have already said, all the evidence is not before us. So far as is disclosed by the pleadings, the relevancy or materiality of any such custom, even if it could have been shown that the same existed among New York jobbers, is not made to, appear, consequently we cannot say that the court committed any ‘error in its ruling. As we have repeatedly and uniformly held, it is the duty of a party resorting to an appellate court to make the errors complained of clearly to appear, if they in truth exist; every presumption being in favor of the correctness of the rulings of the trial court. See Cross v. Aby, 55 Fla. 311, 45 South. Rep. 820, and authorities there cited.
Finding no error, the' judgment must be affirmed.
All concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Stinson v. State, 76 Fla. 421 (Fla. 1918)…s discretion, and is not reviewable on writ of error. See Coker v. Hayes, 16 Fla. 368; Wood v. State, 31 Fla. 221, 12 South. Rep. 539; Myers v. State, 43 Fla. 500, 31 South. Rep. 275; Reyes v. State, 49 Fla. 17, 38 South. Rep. 257; Falk v. Kimmerle, 57 Fla. 70, 49 South. Rep. 504. The answer, however, was not prejudicial, as there was no intimation as to the person or persons from whom the witness anticipated further trouble, and whether or not he feared more trouble was immaterial. A witness for the Sta…
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Attaway McKinnon v. Lewis, 60 Fla. 125 (Fla. 1910)
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Romano v. Palazzo, 83 Fla. 243 (Fla. 1922)…and reasonable exercise of discretionary power and the burden is upon plaintiff in error to make the alleged error in the court’s ruling affirmatively to appear. See Seaboard Air Line Ry. v. Smith, 53 Fla. 375, 43 South. Rep. 235; Falk v. Kimmerle, 57 Fla. 70, 49 South. Rep. 504; Morrasso v. State, 74 Fla. 269, 76 South. Rep. 777. The method of conducting trials, the introduction of evidence, and the order in which witnesses may be called are matters which are left to the reasonable discretion of the tr…
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
- The Seaboard Air Line Ry. v. Smith, 53 Fla. 375 (Fla. 1907)
- Coker v. Hayes, 16 Fla. 368 (Fla. 1878)
- Schley v. State, 48 Fla. 53 (Fla. 1904)
- Anthony v. State, 44 Fla. 1 (Fla. 1902)
- Cross v. Nannie L. Aby and R. H. Aby, 55 Fla. 311 (Fla. 1908)
- Beal v. McKee (Ala. 1907)
- Reyes v. State, 49 Fla. 17 (Fla. 1905)