Summary
In Booker v. Saunders Realty Co., Fla., 53 So.2d 912, the court held that it was error to disregard the mandate of the rule.
Summary of this case from Ebersole v. TeppermanOpinion
July 24, 1951. Rehearing Denied September 6, 1951.
Appeal from the Court of Record for Escambia County, Ernest E. Mason, J.
Coe Coe, Pensacola, for appellant.
Fisher Hepner, Pensacola, for appellee.
We review an order granting a new trial in an action of ejectment wherein the jury returned a verdict for the defendant.
The defense was based upon adverse possession. The claim was seven years adverse possession prior to June 6, 1939, the effective date of Section 95.18, F.S.A. When the jury found for defendant, plaintiff filed a motion for a new trial upon eight grounds. After due hearing the trial court announced that the motion would be granted "upon the ground that there is a fatal variance between the proof and defendant's bill of particulars filed by him in support of his plea of adverse possession, in pursuance of the command of Rule 85 of the Common Law Rules [30 F.S.A., rule 49]." Thereupon defendant tendered such an order for entry, whereupon plaintiff objected to the form and the court then entered a general order granting the new trial without specifying what ground of the motion was granted.
Rule 39(d), Florida Common Law Rules of Practice, requires that the trial court indicate the ground upon which a new trial is granted. This rule was before us for construction in Kent v. Tallahassee Motor Co., 141 Fla. 789, 193 So. 821, wherein we held it to be mandatory. In that case the trial court was not held in error, however, for the reason that the verdict was fatally defective on its face. The situation is different in the case now before us and we must hold the trial court in error. If we are to accord the decision of the trial court proper consideration we must know why the jury's verdict was set aside. Then, too, our approach to the problem is easier if we understand exactly what prompted the court to act.
In this case we have reviewed the entire record and it appears that the case was duly tried and the record contains sufficient evidence to support the verdict inasmuch as several witnesses testified to facts which, if believed by the jury, would sustain the defendant's case.
There is a suggestion of a variance in the defendant's proof and his bill of particulars. We find no element of surprise or harm to plaintiff in that regard.
It is our conclusion that the order be reversed with directions to enter a proper judgment on the verdict.
Reversed.
TERRELL, Acting Chief Justice, and CHAPMAN and THOMAS, JJ., concur.