RALPH RUBIN AND EARL STUART SHEINGOLD, APPELLANTS,
v.
ELIAS H. GONZALEZ AND JUSTINA GONZALEZ, INDIVIDUALLY AND AS HUSBAND AND WIFE, APPELLEES
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Defendants appealed a trial court's decision limiting peremptory challenges during jury selection, arguing they were entitled to six challenges rather than three. The appellate court affirmed, holding that the defendants failed to preserve the error by making no objection when the trial judge ruled on the matter.
The appellate court held that while the trial court may have erred in limiting challenges to three per side, the error was not properly preserved for appeal because the defendants failed to make a formal objection when the trial judge ruled on the matter, as required by Florida Rule of Civil Procedure 2.6.
“which thing was said or done after objection made and considered by the trial court”
The rule requiring objections to be made and considered by the trial court for error to be preserved on appeal
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Join FLexlaw to unlock all legal intelligenceDuring jury voir dire, the trial judge allowed three peremptory challenges to each side (plaintiffs and defendants), despite a rule entitling each par…
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The appellants were defendants and appellees were plaintiffs in the trial court. On voir dire examination of jurors six challenges were allowable to plaintiffs and therefore to the defendants under the rule stated in Funland Park, Inc. v. Dozier, Fla.App.1963, 151 So.2d 460. Three challenges were allowed to each side by the trial judge.
The only question is therefore whether the error was preserved in the record. Florida Rule of Civil Procedure, 2.6, 31 F.S.A., is in part as follows:
“RULE 2.6. EXCEPTIONS UNNECESSARY
“(a) Adverse Ruling. For appellate purposes, no exception shall be necessary to any adverse ruling, order, instruction or thing whatsoever said or done at the trial or prior thereto or after verdict, which thing was said or done after objection made and considered by the trial court, and which affected the substantial rights of the party complaining and which is assigned as error.”
It will be noted that the rule expressly provides “ * * * which thing was said or done after objection made and considered by the trial court * * In this instance there was no objection.1 It does not appear that the trial judge was *168given a fair opportunity to rule upon the contention of the appellant. The most that can he said is that he was asked a question and he answered it in a manner which appellant now contends was erroneous.
Appellant seeks to analogize this ruling to’ one upon a pleading hut this cannot he done since an adverse ruling on a pleading clearly constitutes a departure from the position assumed by the party ruled against.
Affirmed.
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Citator
Authorities Cited
- Zapetis v. The City Nat'l Bank OF Coral Gables, 151 So. 2d 460 (Fla. 3d DCA 1963)