PARK FORTNER AND SAM STEWART, PLAINTIFFS IN ERROR,
v.
THE STATE OF FLORIDA, DEFENDANT IN ERROR
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The Florida Supreme Court affirmed a lower court's judgment because the appellants failed to properly present their motion for a new trial for appellate review. The court noted that such motions must be included in the bill of exceptions, not just the record proper.
No, the appellate court cannot review an assignment of error based on the denial of a motion for a new trial if the motion and ruling are not properly included in the bill of exceptions.
“The rule is well settled in this jurisdiction, that a motion for a new trial is not a part of the record proper, but must be embodied in the bill of exceptions, together with the ruling thereon and the exception to such ruling, in order to present to the appellate court for consideration an assignment of error based upon the denial of such motion.”
Establishes the procedural requirement for appealing the denial of a motion for a new trial.
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Join FLexlaw to unlock all legal intelligenceThe appellants were convicted and subsequently moved for a new trial, alleging the verdict was contrary to and unsupported by the evidence. The trial …
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[*199] Browne, J.
The only error assigned is that the court erred in denying the motion for a new trial, the grounds of which are that the verdict was contrary to the evidence, and not supported by the evidence.
This motion and the order denying it appear in the record proper, but not in the bill of exceptions.
The rule is well settled in this jurisdiction, that a motion for a new' trial is not a part of the record proper, but must be embodied in the bill of exceptions, together with the ruling thereon and the exception to such ruling, in order to present to the appellate court for consideration an assignment of error based upon the denial of such motion. Revell v. State, 85 Fla. 402, 96 South. Rep. 156; Palmore v. State, 65 Fla. 539, 62 South. Rep. 181; Johnson v. State, 53 Fla. 42, 43 South. Rep. 430; Cooper v. State, 47 Fla. 21, 36 South. Rep. 53; McDonald v. State, 46 Fla. 149, 35 South. Rep. 72.
Even if the matter had been presented to this court in 1 proper manner for review, we are not prepared to say that the evidence did not support the verdict, or that the verdict was contrary to the evidence.
There being nothing here for this court to review, the judgment is affirmed.
Taylor, C. J., ana Ru«, J., concur. . Whitfield, P. J., and West and Terrell, J. J., concur in the opinion.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Hall v. State, 89 Fla. 39 (Fla. 1925)…and as a motion for new trial can be considered by the appellate court only when it is prop [*40] erly incorporated in a bill of exceptions, (the assignment of error is unavailing. Revell v. State, 85 Fla. 402, 96 South. Rep. 156; Fortner v. State, 87 Fla. 198, 99 South. Rep. 553. No error appears in the record proper, therefore the judgment should be affirmed. See B. F. Lasseter & Co. v. Zapf, 57 Fla. 89, 48 South. Rep. 749; Carter v. Stockton, 60 Fla. 33, 53 South. Rep. 450; Anderson v. Winer & Whaley,…
Authorities Cited
- Risden McDonald v. State, 46 Fla. 149 (Fla. 1903)
- Johnson v. State, 53 Fla. 42 (Fla. 1907)
- Isaiah E. Cooper v. State, 47 Fla. 21 (Fla. 1904)
- Fierce Palmore v. State, 65 Fla. 539 (Fla. 1913)
- Revell v. State, 85 Fla. 402 (Fla. 1923)