WOODLAWN PARK CEMETERY CO.
v.
THOMAS TANGERMAN
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In this assumpsit action on common counts, Woodlawn Park Cemetery Co. appealed a jury verdict for the defendant. The Florida Supreme Court affirmed, holding that the trial court's instruction regarding plaintiff's failure to produce evidence of a definite amount owed was proper and not misleading, and that plaintiff failed to preserve the sufficiency-of-evidence issue by not taking an exception to the denial of a motion for a new trial.
The court held that the verdict is not shown to be contrary to law under the issues presented by the pleadings, and that the trial court's charge regarding plaintiff's failure to produce evidence of a definite amount owed was proper and not in conflict with other charges. The court also held that without an exception to the denial of a motion for a new trial, the sufficiency of the evidence cannot be properly presented on appeal.
“An exception must be taken to the denial of a motion for a new trial, or the ruling cannot be considered by the appellate court.”
Establishes procedural requirement for preserving sufficiency-of-evidence claims on appeal
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Join FLexlaw to unlock all legal intelligenceWoodlawn Park Cemetery Co. brought an assumpsit action on common counts against Thomas Tangerman. The defendant filed special pleas of set-off, counte…
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The writ of error herein was taken to a judgment for the defendant in an action of assumpsit on common counts. The court stated in the charge to the jury that a plea of the general issue was filed in the cause but it does not appear in the record. There were special pleas' of set off and counter claim, and also a plea of the three-year statute of limitations. Plaintiff in error presents and argues two questions, viz.:
. “1. Whether the plaintiff in this cause is entitled to a new trial under the evidence adduced and the law applicable thereto in this case?
“2. Does the following charge requested by the defendant) given by the court, conflict with the other charges given so as to mislead and confuse the minds of the jury in reaching their verdict, namely: ‘You are instructed that if the plaintiff has' failed to produce evidence upon which *471you can arrive at a definite figure of any amount owing by the defendant to the plaintiff, then you should find for the defendant’?”
It is not shown that the verdict is contrary to law under the issues presented by the pleadings.
As no exception appears to have been taken to the order overruling the motion for a new trial, the probative force of the testimony stands as determined by the verdict and the order denying a new trial.
“An exception must be taken to the denial of a motion for a new trial, or the ruling cannot be considered by the appellate court. Florida Power Co. v. Cason, 79 Fla. 619, 84 So. 921; St. Andrews Bay Lbr. Co. v. Bernard, 106 Fla. 232, 143 So. 159; Henry v. Spitler, 67 Fla. 146, 64 So. 745, Ann. Cas. 1916-E, 1267; Consumers’ Elec. Light, etc., R. Co. v. Smith, 43 Fla. 52, 29 So. 445.
“In the absence of an exception to an order granting or refusing a new trial the sufficiency of the evidence is not properly presented to the supreme court. Phillips v. State, 62 Fla. 77, 57 So. 341; Alexander v. Rhine, 78 Fla. 313, 82 So. 831, citing Bell v. Niles, 61 Fla. 114, 55 So. 392. See also Sec. 4608 (2903), 4609 (2904) C. G. L.; Jacksonville El. Co. v. Adams, 50 Fla. 429, 39 So. 183; Hoodless v. Jernigan, 51 Fla. 211, 41 So. 194. 10 Enc. Digest Fla. Reports 350.”
The charge of the court above quoted has reference to the issues" made by the pleadings and it is not a charge on the facts in violation of the statute. Nor is the charge in conflict with other charges given so as to mislead and confuse the jury. A consideration of the entire record leads to the conclusions that there is no error in the proceedings duly presented for review.
Affirmed.
Davis, C. J., and Whitfeld, Terrell, Brown and Buford, J. J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Int'l Lubricant Corp. v. Grant, 128 Fla. 670 (Fla. 1937)…4609; Holstun v. Embry, 124 Fla. 554, 169 So. 400. In the-absence of an exception to an order granting or refusing a new trial, the sufficiency of the evidence is not properly presented to the Supreme Court. Woodlawn Park Cemetery Co. v. Tangerman, 117 Fla. 470, 150 So. 306, wherein a number of previous decisions by this Court are cited in support of the rule stated. [*675] We might observe, however, that a review of the record; shows that the evidence in this case was amply sufficient to sustain the verdi…
Authorities Cited
- The Jacksonville Elec. Co. v. Adams, 50 Fla. 429 (Fla. 1905)
- Hoodless v. Jernigan, 51 Fla. 211 (Fla. 1906)
- Bell v. Niles, 61 Fla. 114 (Fla. 1911)
- Henry v. Spitler, 67 Fla. 146 (Fla. 1914)
- Alexander v. Rhine, 78 Fla. 313 (Fla. 1919)
- Fla. Power Co. v. Cason, 79 Fla. 619 (Fla. 1920)
- St. Andrews Bay Lumber Co. v. Bernard, 106 Fla. 232 (Fla. 1932)
- Phillips v. State, 62 Fla. 77 (Fla. 1911)
- The Consumers Elec. Light & St. R.R. Co. v. Smith, 43 Fla. 52 (Fla. 1901)