Walter v. Parry

Citations

• 51 Fla. 344

Syllabus

<p>1. Where a bill of exceptions states that “the defendant did on the 24th day of April, 1905, by virtue of the said order herein made, present to the court the testimony taken in said case together with the objections therein and his assignment of error upon which to settle the bill of exceptions and on this day did present this his bill of exceptions to the rulings of the said judge and request him to sign the same, to the signing of which bill of exceptions the plaintiff” did object on the ground that no such bill of exceptions as contemplated and required by the rules of practice and the laws of Florida was presented to the court or signed by the court within the ninety days allowed therefor “which objection the court did then and there overrule * * ' * and the said judge after due notice * * * did sign this bill of exceptions this 24th day of June, 1905,” and there is nothing in the transcript to show what time was allowed within which to make up and settle the bill of exceptions, it will be presumed that such bill was made up and presented to the court within the time allowed by the said order made for that purpose.</p> <p>2. In an action for deceit the plaintiff must set out the false representations on which the charge is based.</p> <p>3.. There can be no recovery upon a cause of action, however meritorious it may be, or however satisfactorily proved, that is in substance variant from that which is alleged in the declaration.</p> <p>i. The instructions of the court must be confined to the issues made by the pleadings, and it is error for the trial court to instruct the jury that they may base their verdict in favor of the plaintiff upon a cause of action, however meritorious or satisfactorily proved, that is substantially different from that which lie has alleged.</p> <p>5. Where a charge given is erroneous injury is presumed, and will be cause for reversal unless from an inspection of the whole record the court can say affirmatively that the jury could not