St. Andrews Bay Lumber Co. v. Bernard

Per Curiam. After dismissal of the writ of error in this ease for failure of the briefs to comply with amended rule 20 (See 135 So. 831), proper briefs1 were tendered which on motion were accepted and the cause reinstated on the docket for disposition on its merits. Motion for a new1 trial was made and denied, but no exception to the order denying a new trial w'as taken, *233 and none appears in the bill of exceptions, although this ruling is attempted to be made the basis of the principal assignment of error, which attacks the sufficiency of the evidence to support a recovery. The probative force of the evidence cannot be considered on writ of error where no motion for a new trial questioning the sufficiency of the evidence was made. Schmids vs. Tampa Pub. Co., 72 Fla. 571, 73 So. 593. And where a motion for a new trial was made, an exception must be taken to the denial of the motion for a new trial, or the ruling cannot be considered on writ of error taken from the judgment. Florida Power Co. vs. Cason, 79 Fla. 619, 84 So. 921. While a motion for a new trial is not essential to a consideration of asserted errors duly assigned, which cover matters’ other than sufficiency of the evidence to sustain the verdict (Florida East Coast Ry. Co. v. Peters, 77 Fla. 411, 83 Sou. Rep. 559), no such errors as will justify a reversal of the judgment in this ease have been made to appear, so the judgment appealed from must be affirmed. Questions of the sufficiency of the evidence to sustain the verdict and judgment to which a writ of error has been taken will not be considered by an appellate court where the record fails to disclose an exception taken by the plaintiff in error to the ruling of the trial court denying the motion for new trial made. See Section 4609 C. G. L., 2904 R. G. S., which requires that the party aggrieved by any order or judgment, except a judgment on demurrer, to make his exceptions thereto. Phillips v. State, 62 Fla. 77, 57 Sou. Rep. 341; Henry v. Spitler, 67 Fla. 146, 64 Sou. Rep. 745, Ann. Cas. 1916E 1267; Johnson v. State, 53 Fla. 42, 43 Sou. Rep. 430; Jacksonville Electric Co. v. Adams, 50 Fla. 429, 39 Sou. Rep. 183, *234 7 Ann. Cas. 241; Hoodless v. Jernigan, 51 Fla. 211, 41 Sou. Rep. 194. Affirmed. Buford, C.J., and Whitfield, Brown and Davis, J.J., concur. Ellis, J., concurs specially. Terrell, J., not participating.