L. C. GRACY, PLAINTIFF IN ERROR,
v.
SEABOARD AIR LINE RAILWAY, DEFENDANT IN ERROR
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In this replevin action, the Florida Supreme Court reversed a judgment for the railway company seeking to recover railroad crossties, holding that the referee erred by imposing an improper burden of proof on the defendant and by failing to give proper probative force to a sheriff's deed admitted without objection.
The court held that the referee erred in both respects. The plea of not guilty puts in issue the plaintiff's right to property without requiring the defendant to affirmatively prove title. Evidence admitted without objection should be given all the probative force that its ordinary meaning affords, and the sheriff's deed should have been so treated.
“The plaintiff, in an action of replevin, must show right of possession in himself to the property replevied. He can only recover upon the strength of his own right of possession.”
Establishes that in replevin, the plaintiff bears the burden of proving his own right to possession
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Join FLexlaw to unlock all legal intelligenceSeaboard Air Line Railway instituted a replevin action against Gracy to recover a lot of railroad crossties. Gracy pleaded not guilty and asserted tha…
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Whitfield, J.
The railway company instituted an action of replevin against Gracy to recover a lot of railroad crossties. The defendant pleaded not guilty, and also that the crossties are not the property of the railway company. Trial was had before a referee, and a writ of error was taken to a judgment for the plaintiff. Errors are assigned on the denial of a new trial and on the final judgment rendered. In his findings the referee states that the pleas set up affirmative matter and the burden was on the defendant to prove his title to the property; and it is further stated in the findings that the sheriff’s deed conveying the land to the defendant, admitted in evidence without objection, “was unaccompanied by an execution or a judgment” and that “under the decisions of the Supreme Court of Florida,” the referee holds “that the defendant has failed to prove title in himself” to the land from which he testified the crossties were taken; “that is to say that the testimony offered is insufficient; I therefore find that the plaintiff is entitled to the possession of the property described.” It is contended that in giving the effect the referee did to the pleadings and in effect holding that an execution and judgment were essential to give probative force to the sheriff’s deed, the referee erred in his finding for the plaintiff on the evidence adduced.
Under the statute the plea of not guilty puts in issue the plaintiff’s right to the property in controversy, and a plea denying the right or title of the plaintiff is unnecessary. See Holliday v. McKinne, 22 Fla. 153.
The plaintiff, in an action of replevin, must show right of possession in himself to the property replevied. He can only recover upon the strength of his own right of possession. Richbourg v. Rose, 53 Fla. 173, 44 South. Rep. 69.
Where testimony is admitted without objection in a judicial proceeding it is treated as received by consent. When so admitted the testimony, if not illegal, should be given all the probative force that its ordinary meaning and effect will afford. Testimony not essentially illegal that is received without objection and is not in any way controverted should be given all the probative force and effect that the meaning of the testimony naturally and ordinarily affords to the mind without technical requirements or limitations. Montgomery v. State, 55 Fla. 97, 45 South. Rep. 879.
It is apparent that the assumption of the referee that the pleas put the burden of proof upon the defendant, and the further assumption that the sheriff’s deed, which was admitted in evidence without objection, was insufficient as evidence of title, caused the referre to consider the testimony from a view point" that may reasonably have been harmful to the defendant.
It cannot be said that the evidence would be legally insufficient to support a finding should there be one of title in the defendant, if the evidence is viewed in the light of the principles of law applicable to the pleadings and the evidence adduced in the case. This being so the plaintiff in error is entitled to have the case tried under proper legal principles.
Judgment reversed.
Taylor, C. J., and Shackleford, Cockrell and Ellis, JJ., concur.
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Delco Light Co. v. John LeRoy Hutchinson Props., 99 Fla. 410 (Fla. 1930)…tle may not be in one who has right to immediate possession of the property replevined, although a want of title may be evidence of a lack of right to immediate possession. Such must' be the meaning of the language in Gracy v. Seaboard Air Line Ry., 69 Fla. 301, 68 So. R. 722. [*420] Mr. Justice Whitfield and Mr. Justice Buford agree with, the writer on this point. Mr. Justice Brown, Mr. Justice Strum and Mr. Justice Terrell agree that the plea was invalid, that the court erred in overruling a demurrer to…
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Southside Atl. Bank v. Lewis, 174 So. 2d 470 (Fla. 1st DCA 1965)…. . Stokes v. Humphries, 69 Fla. 468, 68 So. 448 (1915). . Bringley v. C. I. T. Corp., 119 Fla. 529, 160 So. 680 (1935). . Richbourg v. Rose, 53 Fla. 173, 44 So. 69, 125 Am.St.Rep. 1061, 12 Ann.Cas. 274 (1907); and Gracy v. Seaboard Air Line Ry., 69 Fla. 301, 68 So. 722 (1915). . Bringley v. C. I. T. Corp., 119 Fla. 529, 160 So. 680 (1935); Delco Light Co. v. John LeRoy Hutchinson Properties, 99 Fla. 410, 128 So. 831 (1930). . Sandy Isles of Miami, Inc. v. Futernick, 154 So. 2d 355 (Fla.App.3d, 1963).…
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In re the Est. of Essie Sue Yelvington. Genevieve E. Bowman v. Yelvington, 280 So. 2d 497 (Fla. 1st DCA 1973)…ntestants during cross-examination. As a result of neither parties’ failure to object to the others testimony the evidence adduced was entitled to all probative force and effect normally accorded such evidence. Gracey v. Seaboard Air Line Ry., 1915, 69 Fla. 301, 68 So. 722. At that point the presumption was relegated to the dignity of a permissive inference. In that posture the trial court’s resolution of the matter should have been based upon a consideration of all of the evidence adduced. Gulf Heating Co…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Richbourg v. Rose, 53 Fla. 173 (Fla. 1907)
- Holliday v. McKinne, 22 Fla. 153 (Fla. 1886)
- Montgomery v. State, 55 Fla. 97 (Fla. 1908)
- McClusky v. Trussel (Miss. 1907)