Penny vs. Holmes-Opinion of Court.

WILLIAM PENNY, APPELLANT, VS. N. H. HOLMES, AP

PELLEE.

Where the judgment of the Circuit Court is based upon a consideration of all of the testimony adduced, and none of the testimony is properly brought before this Court, the judgment must be affirmed.

This is an appeal from a judgment of the Circuit Court in Escambia County, rendered in an action of replevin instituted by Penny against Holmes. There was a judgment for defendant, from which the plaintiff appealed. The error assigned in this case required a consideration of the testimony in order to its determination, and there was no bill of exceptions in the record. The case is decided solely upon this point.

C. W. Jones for Appellant.

Mallory & Maxwell for Appellee.

WESTCOTT, J., delivered the opinion of the court.

This is an appeal from a judgment in an action of replevin instituted in Escambia county.

The case both as to the law and the facts was submitted to the court, and after due consideration of the same, judgment was rendered for the defendant, (the appellee here,) in the court below.

The evidence submitted to the court is not before us. There is no bill of exceptions in the record. We have nothing but the judgment of the court before us, and we cannot presume that it is wrong.

We deem it unnecessary to discuss the effect of the constitutional requirement directing that the evidence shall be reduced to writing by the clerk under the control of the court and filed with the papers in the case, as this matter has been decided at this term after mature consideration, our conclusion being that this section does not dispense with the necessity of a bill of exceptions.

The judgment is affirmed.

Parsons and Hoeg vs. Baxter-Opinion of Court.

AMANDA PARSONS AND HALSTED H. HOEG, APPELLANTS, VS. MARTHA B. BAXTER, APPELLEE.

Where the bill of exceptions contains none of the evidence, nor an indica tion of the state of the facts upon which the Circuit Judge was asked to charge, nor any part of the charge of the Court, the judgment appealed from being conformable to the pleadings, no error is apparent in the record and the judgment must be affirmed.

Appeal from the Circuit Court for Duval County.

F. I. Wheaton and B. B. Andrews for Appellants.

Sanderson and L'Engle for Appellee.

RANDALL, C. J., delivered the opinion of the coutt.

Assumpsit commenced in Duval Circuit Court by Martha B. Baxter, appellee, against appellants, and judgment rendered against them Nov. 29th, 1869, for $1,772.53.

There is no assignment of errors filed in this case, as required by the rules.

The error mentioned in the brief is that "the court refused to charge the jury touching the remission of interest during the absence of the plaintiff from the country and the absence of the instrument sued on, the plaintiff having no authorized agent here to receive payment, as asked for by counsel for defendants."

The bill of exceptions contains none of the evidence whatever, nor any indication of the state of the facts upon which the court was asked to charge, nor does it contain any part of the charge of the court. The judgment is conformable the declaration in the suit, and as there is nothing before us showing whether an error was comitted or not, the prosumption is there was none.

There being no error apparent in the record, the judgment is affirmed.

Mountain vs. Roche-Statement of Case.

MILES MOUNTAIN, AppellanT, VS. STEPHEN J. ROCHE,

1.

APPELLEE.

Unless the record discloses so much of the proceedings as will show that an error was committed by the Court below upon the trial, it must be intended that the proceedings in that Court were correct.

The "act for the relief of occupying claimants," approved January 12, 1849, has no application to proceedings under the act relating to forcible entry and detainer.

Appeal from the Circuit Court for Washington county.

This was a proceeding instituted before the Circuit Court for the county of Washington by the respondent, for the unlawful withholding from him by the appellant, without the consent of the respondent, of certain land in that county, praying restitution of possession and damages. The proceeding was commenced in 1869, under the act of 1868, entitled "an act concerning forcible entry and detainer." Verdict and judgment were rendered in favor of the complainant and the defendant appeals.

The return consists of the complaint, summons, memorandum of trial by jury, and their verdict, and a judgment in favor of the respondent for the recovery of the possession of the premises. There are also incorporated in the return memoranda, purporting to be testimony or deposition, and also copies of deeds which the clerk certifies were "given in evidence" on the trial.

The bill of exceptions, entire, is as follows:

"Now on this day came the defendant by his counsel and moved the court for a new trial in the above cause on the following grounds, to-wit:

"I. That the verdict of the jury was contrary to the evidence.

"2. That the verdict of the jury was contrary to law. "3. That the verdict of the jury was contrary to the charge of the court.

Mountain vs. Roche-Opinion of Court.

"4. That the charge of the court was contrary to law. "Which motion the court overruled, and the defendant, by his counsel, excepted and asked the court to sign his bill of exceptions.

"Now on this day came the defendant by his counsel and moved the court to summon twelve disinterested persons to act as jurors, and assess the damages and waste committed, and the value of rent after judgment, and the value of the improvements made by said defendant on said land.

"Which motion the court overruled, to which ruling the defendant, by his counsel, excepted and asked the court to sign this, his bill of exceptions.

HOMER G. PLANTZ, Judge."

The assignment of errors is as follows:

"I. The court erred in overruling the defendant's motion for a new trial.

"II. In having admitted evidence of right of property in complainant, viz: the sheriff's deed to him.

"III. The court erred in overruling the defendant's motion to summon twelve disinterested persons to act as jurors and assess the damages and waste committed, &c."

A. L. Woodward, Sr., and D. L. McKinnon, for Appellant.

C. C. Yonge for Appellee.

RANDALL, C. J., delivered the opinion of the court.

We are unable to determine from this record whether the court erred in overruling the motion for a new trial, or upon what the ruling of the court was based, for the bill of excep tions does not disclose the testimony given on the trial, nor what charge or instructions were given to the jury by the court, nor that any objections or exceptions were made or taken during the trial by either party. Even the memo randa of testimony and the certificates upon the copies of

Mountain vs. Roche-Opinion of Court.

the deeds do not show which party offered or used the supposed testimony or deeds.

This court has so frequently ruled that unless the record disclose so much of the proceedings as will show that an error was committed by the Circuit Court upon the trial, it must be intended that the ruling was correct, that it is unnecessary to repeat any discussion of the question. We discover that the verdict was in accordance with the complaint, and conformable to the statute, and we have not properly before this court anything to inform us what intermediate proceedings were had.

In the case of Robinson vs. L'Engle, decided at the present term, it was held that the minutes of testimony kept by the clerk in pursuance of the constitution were not a part of the record, so far as to dispense with the necessity of incorporating the testimony in a bill of exceptions in order to bring it before this court for view.

The first and second points in the assignment of errors are, therefore, not sustained by the record.

As to the third point, that the court overruled the defendant's motion to summon a jury of twelve persons to assess the damages, waste, &c., we do not consider that the proceeding contemplated is applicable to a case of this characacter. It was stated in the argument that the motion was made under the provisions of "an act for the relief of occupying claimants," passed January 12, 1849. This act provides "that if any person or persons hath or have settled or improved, or shall hereafter settle or improve any lands in this State, supposing them his own by reason of a title in law or equity," "but which lands shall prove to belong to another, the charge and value of such settling and improving, to be ascertained in the manner hereinafter mentioned, shall be paid by the right owner, to such settler, improver, or his assignee or occupant so claiming." The act further provides that the court rendering judgment eviction, or if in equity, rendering a decision against

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