RACHEL KNIGHT HALL AND JANIE MAE STURKS, APPELLANTS,
v.
BEN C. DAVIS AND MAGGIE DAVIS, APPELLEES
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Appellants challenged an equity decree quieting the appellees' title to real property, arguing the trial court erred by accepting oral proof on summary decree motions instead of affidavits. The appellate court affirmed, holding that parties may consent to oral proof if they do not object and that appellants failed to provide a record of the evidence necessary for appellate review of their substantive claims.
The court held that although affidavits are the better practice under the Rules of Civil Procedure for supporting summary decree motions, oral proof is permissible when the interested parties consent and do not object. The court also held it could not reach the appellants' substantive arguments because they failed to provide a record of the evidence.
“It is evident from the record that appellants actively and without objection in the circuit court participated in the procedure followed there at the hearing on the issues presented by their own motion for summary decree as well as that of appellees. Under such circumstances the appellants will not be heard, for the first time on appeal and without having furnished this court with a record of the testimony and exhibits in question, to complain of thé procedure followed on the ground that the Rules of Civil Procedure (1.36 (a, b), 30 F.S.A.) require such motions to be supported by proof in the form of affidavits.”
Establishes that parties may waive procedural requirements by actively participating without objection at trial
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Join FLexlaw to unlock all legal intelligenceThe appellees, as plaintiffs below, sued to quiet their claimed fee simple title to certain real property. The appellants, as defendants below, answer…
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The appellees, plaintiffs below, sued in equity to quiet their alleged fee simple title to certain real property. The appellants, defendants below, by their answer and counterclaim charged that they were the true owners of fee simple title to the subject property, and prayed to have their alleged title quieted against the claims of the plaintiffs. Upon the issues thus made the parties severally moved for a summary decree. Plaintiffs’ motion was granted and defendants appeal from the decree that was consequently entered.
Aside from the post-trial appeal papers, the record on appeal is limited to the complaint, the answer and counterclaim, the *600motions of the respective parties for summary decree, and the decree based thereon, which fully covers appellants’ directions to the clerk for the making up of the record on appeal. Conspicuous by its absence is a transcript of the proofs, in the nature of exhibits and oral testimony, presented on the motions for summary decree.
Appellants seek reversal on the ground that the Chancellor was in error in permitting the proofs in support of the motions for summary decree to be given orally and, secondly, that the proofs actually developed precluded entry of the summary decree.
The decree recites that the Chancellor carefully considered the pleadings, the exhibits received into evidence, and “the oral testimony of the respective parties and the witnesses produced on behalf of the respective parties to this suit,” and “heard the argument of counsel for the respective parties regarding the applicable law.”
It is evident from the record that appellants actively and without objection in the circuit court participated in the procedure followed there at the hearing on the issues presented by their own motion for summary decree as well as that of appellees. Under such circumstances the appellants will not be heard, for the first time on appeal and without having furnished this court with a record of the testimony and exhibits in question, to complain of thé procedure followed on the ground that the Rules of Civil Procedure (1.36 (a, b), 30 F.S.A.) require such motions to be supported by proof in the form of affidavits. While that may be the better practice, there is no compulsion to do so if the interested parties, as in this case, elect to submit it orally and the trial court so permits.
In order to consider the other questions presented by this appeal we would need to have before us a record of the evidence upon which the decree is predicated. It was appellants’ duty to furnish it. Johnson v. Roberts, Fla., 79 So.2d 425.
Affirmed.
WIGGINTON, J., and DAYTON,. ORVIL L., Jr., Associate Judge, concur.
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Citator
Cited By (19 total)
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Brown v. Householder, 134 So. 2d 801 (Fla. 2d DCA 1961)…ncy or insufficiency of the evidence to support a verdict or judgment when evidence is missing from the record-on-appeal. See Brody v. Brody, Fla.App.1958, 105 So. 2d 378; McClosky v. Martin, Fla.1951, 56 So. 2d 916; and Hall v. Davis, Fla.App.1958, 106 So. 2d 599. A judgment being appealed is normally accorded a presumption of cor [*804] rectness. This presumption is most often applied in cases in which part or all of the evidence adduced at trial is excluded from the record. See 2 Fla.Jur., Appeals, § 319,…
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Moyer v. Moyer, 114 So. 2d 638 (Fla. 3d DCA 1959)…esented contains only the pleadings in the case. Inasmuch as we are unable to determine the propriety of the award to which error is assigned without reference to the evidence before the chancellor, we affirm the decree. Hall v. Davis, Fla.App.1958, 106 So. 2d 599; Greene v. Hoiriis, Fla.App.1958, 103 So. 2d 226. Although not necessary to a decision in this case it should be noted that the obligation to furnish a record sufficient to support the appeal is upon the party urging error. Rule 3.6(b) Florida Appe…
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Wilder v. Altman, 179 So. 2d 250 (Fla. 3d DCA 1965)…the record. It is incumbent upon the appellant to present a record which is sufficient to support the points raised on appeal. Johnson v. Roberts, Fla.1955, 79 So. 2d 425; Greene v. Hoiriis, Fla.App.1958, 103 So. 2d 226; Hall v. Davis, Fla.App.1958, 106 So. 2d 599; Brown v. Householder, Fla.App.1961, 134 So. 2d 801. In the absence of a proper record, the judgment must be affirmed. Greene v. Hoiriis, supra; Brown v. Householder, supra. Affirmed.…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Johnson v. Roberts, 79 So. 2d 425 (Fla. 1955)