B. F. LASSETER AND E. J. LASSETER, PARTNERS, AS B. F. LASSETER & COMPANY, PLAINTIFFS IN ERROR,
v.
JOSEPH ZAPF, DEFENDANT IN ERROR
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The Florida Supreme Court affirmed a circuit court order denying a motion to strike a judgment, holding that because the bill of exceptions was not properly authenticated by the trial judge, the appellate court could not review the assignment of error.
An unauthenticated bill of exceptions will be stricken from the appellate record upon motion. When the only error assigned cannot be considered without a proper bill of exceptions and no such bill exists in the transcript, the judgment must be affirmed.
“Where the bill of exceptions appearing in a transcript of the record has not been duly authenticated by the trial judge as required by the rules of court it will upon motion, be stricken from the record of the appellate court”
Establishes the mandatory procedural requirement for authentication of bills of exceptions
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Join FLexlaw to unlock all legal intelligenceLasseter & Company filed a motion in the Seventh Judicial Circuit to strike from the court records a judgment they asserted was void. The trial judge …
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Per Curiam
A writ of error was taken to an order made by the Judge of the Seventh Judicial Circuit in vacation denying a motion to strike from the records of the court a judgment asserted in the motion to be void. The only error assigned is the order denying the motion: to strike the judgment. A motion is made to strike the bill of exceptions because it was not legally signed by the judge. The motion to strike the judgment and the order made thereon with the exception taken should be presented to the appellate court for review by a duly authenticated bill of exceptions. The purported bill of exceptions in the transcript does not appear to have been authenticated by the judge when the order denying the motion to strike the judgment was denied or afterwards by virtue of a special order then made extending the time for authenticating the bill of exceptions as required by Rule 97 of the Circuit Court Rules and the motion to strike the bill of exceptions is granted.
Where the bill of exceptions appearing in a transcript of the record has not been duly authenticated by the trial judge as required by the rules of court it will upon motion, be stricken from the record of the appellate court; and in such case, if there is in the remaining record no other question or matter assigned, presented or urged as error except such as can be presented or considered only through a proper bill of exceptions, the judgment will be affirmed. Horn v. State, 40 Fla. 472, 24 South. Rep. 147; Florida Cent. & P. R. Co. v. St. Clair-Abrams, 35 Fla. 514, 17 South. Rep. 639; Bardwell v. State, 49 Fla. 1, 38 South. Rep. 511.
As the only error assigned cannot be considered without a proper bill of exceptions and as there is no such bill in the transcript the order to which the writ of error issued is affirmed.
All concur except Parkhill, J., who took no part.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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DeSoto Holding Co. v. Boyer, 85 Fla. 517 (Fla. 1923)…nted for review, therefore the judgment be and is hereby affirmed. Bardwell v. State, 49 Fla. 1, 38 South. Rep. 511; Horn v. State, 40 Fla. 472, 24 South. Rep. 147; Anderson v. Winner & Whaley, 50 Fla. 177, 39 South. Rep. 31; Lasseter & Co. v. Zapf, 57 Fla. 89, 48 South. Rep. 749; Carter v. Stockton, 60 Fla. 33, 53 South. Rep. 450. Affirmed. Taylor, C. J., and Ellis, Browne, West, and Terrell, JJ., concur.…
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Carter v. Stockton, 60 Fla. 33 (Fla. 1910)
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Preston v. State, 86 Fla. 476 (Fla. 1923)…and adjudged that the judgment of the Circuit Court being in accordance with law, be and the same is hereby affirmed. Horn v. State, 40 Fla. 472, 24 South. Rep. 147; Anderson v. Winer & Whaley, 50 Fla. 177, 39 South. Rep. 31; Lasseter & Co. v. Zapf, 57 Fla. 89, 48 South. Rep. 749; Carter v. Stockton, 60 Fla. 33, 53 South. Rep. 450. Affirmed. Whitfield, P. J., and West and Terrell, J. J., concur. Taylor, C. J., and Ellis and Browne, J. J., concur in the opinion.…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Fla. Cent. & Peninsular R.R. Co. v. St. Clair-Abrams, 35 Fla. 514 (Fla. 1895)
- Shadrack Bardwell v. State, 49 Fla. 1 (Fla. 1905)
- Horn v. State, 40 Fla. 472 (Fla. 1898)