COKER J. CLARK AND ARTIE MARY CLARK, HIS WIFE, AND JOHN T. ADKINSON AND CATHLEEN ADKINSON, HIS WIFE, APPELLANTS,
v.
OSCEOLA CLAY & TOP SOIL COMPANY, RAY CONSTRUCTION COMPANY, INC., A CORPORATION, RAY CONSTRUCTION COMPANY, AND W. L. RAY, JR., AS EXECUTOR, AND ALSO KNOWN AS WILLIAM L. RAY, JR., AND NELL RAY, AS EXECUTRIX OF THE ESTATE OF WILLIAM L. RAY, DECEASED, APPELLEES
PER CURIAM.
We have thoroughly examined the briefs, appendices and original record. There are numerous procedural errors which, if properly brought to the attention of the trial judge or raised in this court, might justify a reversal. Our consideration of the record, however, convinces us that' in the ultimate result the trial judge ruled correctly. Under the circumstances reflected by this record the procedural errors are either harmless or were waived in the trial court. Therefore, the judgment under assault is
Affirmed.
TERRELL, C. J., and ROBERTS, DREW, THORNAL and O’CONNELL, JJ., concur.
On Petition for Rehearing
PER CURIAM.
On petition for rehearing appellants’ appellate counsel, who incidentally were not their trial counsel, insist that we overlooked the proposition that the errors asserted on appeal were so fundamental that they justified consideration even though the questions involved were not presented to the trial judge.
We did not overlook this point. This is a civil case in which the trial judge had jurisdiction of the parties and the subject matter. He had the power to act in the premises.
In order to justify consideration by this court on appeal, appellants who were plaintiffs below should have first raised the questions in the trial court. Mariani v. Schle-man, Fla. 1957, 94 So. 2d 829.
The petition for rehearing is denied.
TERRELL, C. J., and ROBERTS, DREW, THORNAL and O’CONNELL, JJ., concur.
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Ashford v. State, 274 So. 2d 517 (Fla. 1973)…dence of the information contained therein, and therefore inadmissible. It is well established that this Court will not consider issues not presented to the trial court unless fundamental error can be shown. Clark v. Osceola Clay & Top Soil Company, 99 So. 2d 869 (Fla.1958). Ashford admits that the issue was not raised before the trial court, but urges that the use of the report by the prosecutor constituted fundamental error. In considering the issue, this Court has said: “ ‘Fundamental error,” which can…
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In re Est. of Anna Z. Kionka v. Ziegler, 121 So. 2d 644 (Fla. 1960)…nvolves the power of an appellate court to consider fundamental error when raised for the first, time on appeal. This court has recognized that such may be done. Love v. Hannah, Fla.1954, 72 So. 2d 39; Clark v. Osceola Clay & Top Soil Co., Fla.1958, 99 So. 2d 869; and F.A.R. 3.7(i), 31 F.S.A., support this doctrine. This court has specifically considered the validity of a statute although such question was not raised in the trial court which rendered the judgment under review. Parker v. Town of Callahan, 193…
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Marinelli v. Weaver, 187 So. 2d 690 (Fla. 2d DCA 1966)…reiterated the foregoing rule, but further observed that “one well recognized exception is that error affecting fundamental rights may be raised for the first time on appeal.” See also the headnote in Clark v. Osceola Clay & Top Soil Co., Fla. 1957, 99 So. 2d 869.5 We are also cognizant of Rule 3.7, subd. i, Fla.App. Rules, 31 F.S.A., which provides inter alia that “[t]he Court, in the interest of justice, [*694] may notice jurisdiction or fundamental error apparent in the record-on-appeal, whether or not it…
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- Mariani v. Schleman, 94 So. 2d 829 (Fla. 1957)