Thomas v. Price

Citations

• 56 Fla. 694

Syllabus

<p>1. As the court should refuse to settle a bill of exceptions when no' assignment of errors is presented therewith, it must be assumed, in the absence of an affirmative showing to the contrary, that an assignment of error was presented to the judge, with the bill of exceptions, at least where no exception was taken to the settlement of the bill of exceptions on that ground.</p> <p>2. The mere fact that a bill of exceptions duly authenticated contains no assignment of errors, is not conclusive that none was presented to the judge with the bill of exceptions as required by the rule, even though the rule also directs that such assignment of errors be made a part of the bill of exceptions.</p> <p>3. The rule does not require the transcript to show the service of a copy of an assignment of errors on the defendant in error or his counsel.</p> <p>4. Grounds of motions are not self sustaining, and if based upon matters dehors the record, they should be supported by evidence aliunde, or they will fail.</p> <p>5. The rule directs that the assignment of errors presented with the bill of exceptions shall be made a part thereof; but the mere failure to do so is not sufficient ground for striking the bill of exceptions, duly authenticated by the judge upon notice and without objection. Nor is it a ground for dismissing the writ of error, especially when the transcript contains an assignment of errors upon matters in the record proper as well as in the bill of exceptions.</p> <p>6. Where it does not affirmatively appear by the transcript, that no assignment of errors was presented to the judge when he settled the bill of exceptions or that the defendants in error were not served with a copy of the assignment of errors filed with the clerk, motions to strike the bill of exceptions and to dismiss the writ of error on such grounds should be denied in the absence of proof to support the motions.</p>