Bardin v. L'Engle

WESTCOTT, J., delivered the opinion of the court. This is an appeal from a judgment rendered in an action [572] ■of ejectment in the Circuit Court for Duval county, wherein the appellant was plaintiff and the appellee defendant. The first error assigned in this ease is, “ that the court refused a judgment by default for want of a replication, issue not having been joined before the swearing and empaneling of the jury.” The record in this case contains a declaration in ejectment, framed under the statute, a plea of the general issue, and a joinder in issue by the plaintiff is endorsed on the plea. This endorsement is without date, and the presumption in the absence of evidence to the contrary is that it was made in time, and in conformity with the rules. It is true, that the Judge certifies in what purports to be a bill of exceptions, that the plaintiff had not accepted the issue tendered by the plea before the jury were called, and if this statement was properly before us, the question stated in the first assignment of error would be raised ; but it appears that the bill of exceptions in this case was signed after the term, and there is no evidence that such time was allowed to make it up and sign it in accordance with the provisions of rule 8, governing the practice in the Circuit Courts in this respect. 6 Fla., 521. The appellee makes this objection to the bill of exceptions, and the rule must be enforced. The practice which prevails in the Supreme Court of the United States is not to regard such a paper as a bill of ex-■eeptions. 4 Pet., 107; 4 How., 4. We cannot therefore regard this statement in the consideration of this subject. All the other errors assigned involve a consideration of the evidence adduced upon the trial, and in the absence of a bill of exceptions cannot be considered. We have nothing in the record which occurred upon the trial. Ho error appears in such portion of the record as is before us, and we cannot do otherwise than affirm the judgment. The judgment is affirmed.