J. A. KIDD AND SOUTHERN SURETY COMPANY, A CORPORATION, PLAINTIFFS IN ERROR,
v.
CITY OF JACKSONVILLE, A MUNICIPAL CORPORATION, FOR THE USE AND BENEFIT OF HIRSCH LUMBER COMPANY, A CORPORATION, DEFENDANT IN ERROR
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In this writ of error reviewing a judgment on a surety bond, the Florida Supreme Court addressed procedural challenges to the appellate record, specifically whether exhibits and witness testimony properly included in the bill of exceptions should be stricken from review. The Court held that properly authenticated bills of exceptions containing witness testimony are admissible on appeal, and struck only those exhibits not properly incorporated into the bill of exceptions itself.
The Court held that the motion to strike the bill of exceptions in its entirety and the authenticated portion thereof containing witness testimony is denied. However, exhibits copied into the transcript following the authenticating certificate but not properly identified in the bill of exceptions or certificate itself must be stricken, as they were not properly transmitted to the appellate court under applicable statutes.
“The exhibits so copied into the transcript following the certificate of the trial judge authenticating the bill of exceptions, are not so referred to in the bill- of exceptions or in the authenticating certificate of the trial judge as to sufficiently identify the exhibits or to make them a part of the bill of exceptions, therefore they must be stricken.”
Establishes that exhibits must be properly identified in and incorporated into the bill of exceptions itself to be part of the appellate record
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Join FLexlaw to unlock all legal intelligenceKidd and Southern Surety Company appealed a judgment for Hirsch Lumber Company in an action on a bond. The defendant in error moved to strike from the…
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Whitfield, P. J.,
A writ of error was taken to a judgment for the plaintiff in an action on a bond. For a previous writ of error see Kidd v. City of Jacksonville, 91 Fla. 380, 107 So. R. 677.
The defendant in error moves to strike from the transcript of the record (1) the bill of exceptions in its entirety; (2) that portion of the bill of exceptions consisting of testimony of witnesses; (3) “that portion of the record purporting to consist of copies of documentary exhibits numbered respectively 1 to 14, both inclusive, except ex-Mbit No. 5, wbieb last mentioned exhibit the trial court has certified to the Supreme Court in its original form. ’ ’
The exhibits referred to are copied into the transcript of the record succeeding the certificate of the trial judge that authenticated the bill of exceptions. The exhibit so copied into the transcript following the certificate of the trial judge authenticating the bill of exceptions, are not so referred to in the bill-of exceptions or in the authenticating certificate of the trial judge as to sufficiently identify the exhibits or to make them a part of the bill of exceptions, therefore they must be stricken. F. L. I. Co. v. Williams, 83 Fla. 251, 91 So. R. 177; F. L. I. Co. v. Williams, 84 Fla. 137, 92 So. R. 876. Such exhibits have not been transmitted to the appellate court under Section 1, Chapter 9168, Acts 1923, Section 4626, Comp. Gen. Laws 1927. See also Section 2, Chapter 12019, Acts 1927, Section 4611, Comp. Gen. Laws 1927.
Before the expiration of the time allowed for presenting a proposed bill of‘exceptions, counsel for the plaintiff in error presented to the trial judge a transcript of the testimony of the witnesses in the cause. There is copied into the transcript, but not in the bill of exceptions (See Section 3, Chapter 12019, Acts 1927, Section 4612, Comp. Gen. Laws 1927), an order made by the trial judge on the day the proposed bill of exceptions was presented to him, allowing himself seven days within which to settle the bill of exceptions. If this order may be considered here, it is not material, since the judge had authority to settle and authenticate the bill of exceptions at his reasonable convenience after it was duly presented within the time allowed by the special order made in the cause during the term of the court. Bossom v. Gillman, 70 Fla. 310, 70 So. R. 364.
The portion of the proposed bill of exceptions that is included in the transcript preceding the authenticating certificate of the trial judge, constitutes the authenticated bill of exceptions. The certificate of the trial judge states that the defendant did “within the time allowed by special order of the court for presenting the same, propose this his bill of exceptions containing all of the testimony and evidence taken on such trial, with the exception of the plaintiff’s Exhibit No. 5 offered in evidence at such cause, which sai doriginal exhibit has been by this court certified to the Supreme Court on account of its voluminous character, to the ruling of said judge and it requests him to sign same which, after due notice to the opposite party or its attorney, is done this the 25 day of January, A. D. 1930, as and for January 18th, 1930.”
The proposed bill of exceptions as to the testimony of witnesses was prepared from a ‘ ‘ stenographer’s transcript ’ ’ in the form of questions and answers as authorized but not required by Chapter 12019, Acts 1927, Sectibns. 4610 et seq., Comp. Gen. Laws 1927. Such statute does not abrogate Special Rules 1, 2, and 4 relative to transcripts in appellate proceedings to the Supreme Court; and the statute does not violate the Constitution by unlawfully encroaching upon the powers of the judicial department of the State government.
The motion to strike the bill of exceptions as an entirety and to strike the portion thereof that is duly authenticated by the trial judge are denied.
It is so ordered.
Terrell, C. J., and Ellis, Brown and Buford, J. J., concur,
Strum, J., disqualified.
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Citator
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Holstun & Son v. Embry, 124 Fla. 554 (Fla. 1936)…anscript is correct. Where then is the copy of the record of the judgment required by the rule? This Court had occasion to discuss Chapter 12019, supra, in the cases of Branch v. State, 96 Fla. 307, 118 South. Rep. 13; Kidd v. City of Jacksonville, 99 Fla. 1023, 128 South. Rep. 31; St. Andrews Bay Lbr. Co. v. Bernard, 106 Fla. 232, 143 South. Rep. 159; Concurring opinion; Mungin v. State, 109 South. Rep. 577; Jarvis v. State, 115 Fla. 320, 156 South. Rep. 310. An examination of the evidence and charges of…
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St. Andrews Bay Lumber Co. v. Bernard, 106 Fla. 232 (Fla. 1932)…stood the criticisms of generations and served efficiently to promote accuracy in judicial conclusions, accomplished nothing more by the act than to add a little more to the expense and much to the chances of error. See Kidd v. City of Jacksonville, 99 Fla. 1023, 128 South. Rep. 31; Branch v. State, 96 Fla. 307, 118 South. Rep. 13.…
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Morris v. State, 110 Fla. 95 (Fla. 1933)…, only when such matters in pais copied in the transcript are properly referred to and identified by some appropriate reference contained in the bill of exceptions. Ferlita v. Figorrata, 107 Fla. 489, 145 Sou. Rep. 607; Kidd v. City of Jacksonville, 99 Fla. 1023, 128 Sou. Rep. 31. The overruling of the assignments of error relating to the County Judge’s denial of defendant’s request for thirty minutes for argument, instead of twenty minutes as allowed, was not a departure, by the Circuit Court as a Court o…
Authorities Cited
- Bossom v. Gillman, 70 Fla. 310 (Fla. 1915)
- Kidd v. City of Jacksonville, 91 Fla. 380 (Fla. 1926)
- Fla. Land Inv. Co. v. Williams, 83 Fla. 251 (Fla. 1922)