F. L. MCCULLOCH AND J. M. TOWNE, SERAFIN SANCHEZ AND E. BERGER, PLAINTIFFS IN ERROR,
v.
LEE DEKLE, DEFENDANT IN ERROR
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The Florida Supreme Court granted a petition for rehearing and reversed its prior decision, holding that the trial court verdict and judgment must be properly authenticated in the record on appeal rather than merely attached as exhibits to a motion. The court affirmed the circuit court's judgment due to the plaintiffs in error's failure to properly present the challenged verdict and judgment for appellate review.
A trial court verdict and judgment that are the subject of a writ of error must be included in the record proper and authenticated under the hand and seal of the Clerk of the lower court. Alleged copies of the verdict and judgment attached as exhibits to a motion are insufficient for appellate review, and such motions are not self-verifying.
“The transcript of record brought here does not contain the verdict and judgment sought to be set aside, except as exhibits to the motion or petition for stay of execution and for vacation of such judgment, and there is no authentication of the fact that there was such a verdict and judgment as the ones assailed by such motion or petition.”
Establishes the procedural defect that the verdict and judgment were not properly presented in the record on appeal.
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Join FLexlaw to unlock all legal intelligencePlaintiffs in error sought to set aside a verdict and judgment from the circuit court by filing a petition for stay of execution and vacation of judgm…
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Taylor, J.
This cause comes on for further consideration upon a petition for rehearing in which it is pointed out that this court in the former consideration of the case overlooked the fact that the verdict and judgment, assailed in the petition for stay of execution and for vacation of said judgment, are not so exhibited in the transcript of record brought here as that this court could consider the same. This contention of the defendant in error in his petition for rehearing we find to be well taken. The transcript of record brought here does not contain the verdict and judgment sought to be set aside, except as exhibits to the motion or petition for stay of execution and for vacation of such judgment, and there is no authentication of the fact that there was such a verdict and judgment as the ones assailed by such motion or petition. Alleged copies of such verdict and judgment are attached as exhibits to such motion or petition, but such motions are not self verifying.
Inasmuch as such verdict and judgment were part of the record proper in the cause, no bill of exceptions was either necessary or proper to exhibit them to the appellate court, but they should have been included in the record proper brought here by writ of error, properly authenticated under the hand and seal of the Clerk below, in order to a proper consideration thereof by this court. It follows from what has been said that this court erred in its former opinion in this cause, and the application for rehearing is hereby granted, and the former judgment of this court reversing the judgment of the circuit court in said cause is hereby vacated and set aside, and instead thereof the judgment of the circuit court-in said cause is hereby affirmed at the cost of the plaintiffs in error. Hocker and Parki-iill, J. J., concur;
Whitfield, O. J., and Shackleford and Cockrell, J. J., concur in tlie opinion.
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Morgan v. Marshall, 78 Fla. 59 (Fla. 1919)…considered because these documents are not properly exhibited to this court. They form a part of the record of the original cause and should be exhibited to the appellate court in the record proper— not in the bill of exceptions. McCulloch v. Dekle, 59 Fla. 330, 52 South. Rep. 610. Matters which constitute part of the record proper have no place in the bill of exceptions, and when evidenced to the appellate court only by the bill of exceptions, such court can not consider assignments of error predicated u…