WILLIAM SCHMIDS, PLAINTIFF IN ERROR,
v.
TAMPA PUBLISHING COMPANY, A CORPORATION, DEFENDANT IN ERROR
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The Florida Supreme Court affirmed a judgment for the defendant in a conversion case, holding that appellate courts will not review assignments of error based on the probative force of evidence when no motion for a new trial was made in the lower court.
No, the appellate court will not consider assignments of error based on the probative force of the evidence when no motion for a new trial was made to allow the trial judge to review his finding.
“As no motion for new trial was made so that the trial judge could have reviewed his finding on the stipulated facts, the appellate court will not consider assignments of error based on the probative force of the evidence.”
Establishes the rule that a motion for new trial is necessary to preserve for appeal issues regarding the probative force of evidence.
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Join FLexlaw to unlock all legal intelligencePlaintiff Schmids sued for conversion of goods. After demurrers to some pleas and replications were ruled upon, the case was tried on stipulated facts…
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Per Curiam.
—Schmids brought an action to recover damages for the alleged conversion of goods taken in attachment proceedings. The defendant pleaded the general issue and also special pleas, all of which latter were held bad on demurrer except one. Two of the replications to the remaining special plea were sustained on demurrer. The cause was tried by the court on a stipulation as to the facts. There was judgment for the defendant. No motion for new trial was made. The plaintiff took writ of error. The only assignment of errof on the pleading is expressly waived in the brief for the plaintiff in error. The other assignments of error are upon the judgment, and are argued upon the theory that the stipulated facts do not sustain the judgment. As no motion for new trial was made so that the trial judge could have reviewed his finding on the stipulated facts, the appellate court will not consider assignments of error based on the probative force of the evidence.
The judgment, considered with reference to the pleadings, does not appear to be erroneous.
Judgment affirmed.
All concur.
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Smithie v. State, 88 Fla. 70 (Fla. 1924)…he motion for a new trial however and the order overruling it are not included in the bill of exceptions. This Court, therefore, would not consider an assignment of error based upon the probative force of the evidence. See Schmids v. Tampa Pub. Co., 72 Fla. 571, 73 South. Rep. 593; Florida Power Co. v. Cason, 79 Fla. 619, 84 South. Rep. 921; Andrews v. State, 65 Fla. 377, 61 South. Rep. 975. The eleventh and twelfth assignments of error are therefore not well taken. There is no basis in the record for the…
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St. Andrews Bay Lumber Co. v. Bernard, 106 Fla. 232 (Fla. 1932)…tacks the sufficiency of the evidence to support a recovery. The probative force of the evidence cannot be considered on writ of error where no motion for a new trial questioning the sufficiency of the evidence was made. Schmids vs. Tampa Pub. Co., 72 Fla. 571, 73 So. 593. And where a motion for a new trial was made, an exception must be taken to the denial of the motion for a new trial, or the ruling cannot be considered on writ of error taken from the judgment. Florida Power Co. vs. Cason, 79 Fla. 619,…