Burt v. Florida Southern Railway Co.

Citations

• 43 Fla. 339

Syllabus

<p>1. Assignments of error based upon alleged rulings not shown by the abstracts to have been made, or not shown by the abstract to have been excepted to where an exception is necessary, or based upon instructions not set forth in the abstract, or if set forth, not accompanied by a statement of the substance of the testimony upon which they were based, will not be considered by an appellate court, where the cause is submitted upon abstracts of the record not excepted to.</p> <p>2. Trial courts have discretionary power under section 1042 Revised Statutes to permit amendments of the pleadings by the withdrawal of a plea by a defendant during the trial, and unless the appellate court can see that the discretion was abused, and that the opposite party might have been injured by such an amendment, the ruling permitting the amendment will not be disturbed on writ of error.</p> <p>3. Under section 1042 Revised Statutes trial courts have discretionary power to permit amendments of the pleadings after verdict in furtherance of justice, but this power should be more cautiously exercised than in cases where the application to amend is made before the verdict, and where such amendment after verdict makes a new issue which has not been submitted by the parties to the jury on trial, a new trial ought ordinarily to be granted, but where it clearly appears to the appellate court that the opposite party was not injured by such amendment, the ruling granting- it will not be disturbed, though the trial court refused to grant a new trial.</p> <p>4. A plaintiff in ejectment must recover upon the strength of his own title and not upon the weakness of his adversary’s He cannot recover even as against one without title, unless he proves title or prior possession.</p> <p>5. Plaintiff sued defendant, a railroad company, in ejectment for the whole of certain-blocks of land containing- nearly twenty-five acres. Defendant pleaded, first, not guilty; second, that it was not in possession of any