Opinion
April 29, 1952.
Appeal from the Circuit Court for Dade County, J. Fritz Gordon, J.
David M. Trau, Miami Beach, for appellants.
Courshon Courshon and Jack R. Courshon, all of Miami Beach, for appellee.
The appellee has filed a motion to strike certain assignments of error numbered 4, 8, 9, 10, 21, 22, and 23, upon the following grounds:
"1. The Court herein cannot consider the matters raised in said specific assignments of error when no motion for a new trial was made or considered before the trial court as a predicate to assigning said matters as error.
"2. That said assignments of error recite matters relating to the weight and sufficiency of the evidence and the excessiveness of the verdict which this Appellate Court cannot consider in the absence of a motion for a new trial being heard and disposed of in the trial court."
Each of the above numbered assignments of error questioned the weight or the sufficiency of the evidence or the excessiveness of the verdict.
No motion for a new trial was filed or motion to extend the time for filing for a new trial appears to have been made as required by Common Law Rule 41, 30 F.S.A. No order upon a motion for new trial was obtained or entered. The sufficiency or weight of the evidence or the excessiveness of the verdict are proper subjects to be dealt with by a motion for new trial and an order thereon. Thomas Brothers Co. v. Price Watson, 56 Fla. 854, 48 So. 262.
In the case of Howland v. Cates, Fla., 43 So.2d 848, 850, we held that Section 54.24, F.S.A., and 59.07, F.S.A., should be construed together. In that case the court said:
"When these statutes are construed together, as we think they must be, it is plain that while prior to the enactment of chapter 22854 it was necessary for the losing party to except to adverse rulings made during the trial if he desired to have alleged errors in pais reviewed by the appellate court, Warner v. Goding, 91 Fla. 260, 107 So. 406, such exceptions are no longer necessary; provided the proper foundation for the consideration of such questions is duly laid in the trial and appellate proceedings. Under the new statute, chapter 22854, the losing party may secure a review of all questions of law involved in any adverse ruling arising during the course of the trial, even though not included in the motion for new trial, under the following conditions: Where the question arises as the result of charges given by the trial court of its own motion or at the request of the adversary, or as the result of the refusal of the trial court to give charges requested by the losing party in writing, the losing party may secure a review thereof without having objected thereto at the trial, or having excepted to the ruling; provided the giving or refusal to give the charge is properly assigned as error and embodied in the transcript of the record brought here on appeal. Where the question arises as the result of any `adverse ruling, order, instruction or thing whatsoever said or done at the trial' (other than a question arising from the giving or refusal to give a charge) the losing party may secure a review thereof; provided a timely objection has been made at the trial and a ruling secured thereon by the trial court; provided, further, that the losing party has thereafter properly assigned the ruling as ground of error, and the matter to which the objection was made, the objection interposed, and the ruling made on the objection have been properly embodied in the transcript of the record brought here on appeal." (Italics supplied.)
See also Camp Phosphate Co. v. Stokes, Fla., 41 So.2d 340.
The questions presented by the above numbered assignments of error do not come within the exceptions set forth in our opinion in Howland v. Cates, supra, in that no "timely objection" was made at the trial and a "ruling secured thereon by the trial court". Such "timely objection" and "ruling thereon by the trial court" is essential to give this court jurisdiction to consider such assignments of error.
The motion to strike the above numbered assignments of error is granted.
SEBRING, C.J., and CHAPMAN and HOBSON, JJ., concur.