Rubin v. Gonzalez

TILLMAN PEARSON, Judge. The appellants were defendants and appellees were plaintiffs in the trial court. On voir dire examination of jurors six challenges were allowable to plaintiffs and therefore to the defendants under the rule stated in Funland Park, Inc. v. Dozier, Fla.App.1963, 151 So.2d 460. Three challenges were allowed to each side by the trial judge. The only question is therefore whether the error was preserved in the record. Florida Rule of Civil Procedure, 2.6, 31 F.S.A., is in part as follows: “RULE 2.6. EXCEPTIONS UNNECESSARY “(a) Adverse Ruling. For appellate purposes, no exception shall be necessary to any adverse ruling, order, instruction or thing whatsoever said or done at the trial or prior thereto or after verdict, which thing was said or done after objection made and considered by the trial court, and which affected the substantial rights of the party complaining and which is assigned as error.” It will be noted that the rule expressly provides “ * * * which thing was said or done after objection made and considered by the trial court * * In this instance there was no objection.1 It does not appear that the trial judge was [168] given a fair opportunity to rule upon the contention of the appellant. The most that can he said is that he was asked a question and he answered it in a manner which appellant now contends was erroneous. Appellant seeks to analogize this ruling to’ one upon a pleading hut this cannot he done since an adverse ruling on a pleading clearly constitutes a departure from the position assumed by the party ruled against. Affirmed. Footnotes [1] The sole proceedings on this subject were: “THE COURT: Call another juror. “THE CLERK: Paul De gtefano. “MR. VOGELSANG: Are we allowed six challenges? “THE COURT: Three apiece. ***** “MR BRANNEN: I think we will excuse this gentleman, Your nonor. “THE COURT: That is three. Call another juror. ***** “MR. VOGELSANG: The defendants will excuse Mr. Vargo, Your Honor. “THE COURT: Call another juror. This is three, isn’t it? “MR VOGELSANG: Yes, sir.” *****