The weekly Floridian. [volume] (Tallahassee, Fla.) 1867-19??, 1882-07-25

ins0vcnt
IA An administrator is not io be- dcl1iied n #
course with cssts ami charges attending unsne-
ccssful suits brought by him upon the paper bs'-
longing Ia the estate. H. under the circumstances,
the litigation was just and proper. and appzr-
emily for the benefit of the estate. and broughf
bona tde, hr is entitled 10 credits for costs and
charges, and for services rendered in Connection
with the litigation.
Is. Upon the institution of a suit against him.
the administrator may relieve himself Of liability
for interest by paying the money into court. 9th
erwise the legal rate of interest each class If
debts existing AT The commencement of the suif,
continues according "a law.
16. To the exitnt that charges paid by the al
minisrator to the Judge of the County Court are
Illegal 10 that extent should the administrator b.
charged Herewith
Decree reversed in each appeal
John w. Malone. for Appellants; stephens
& Love, for Appellees-
Thomas E. Savage. Plaintiff in Error. vs. The
State Of FLORIDA, Defendcni in Error-EalIlsia
county.
VAN NALKENBURGH, j..
On motion for rehearing in this case, the
attention al the court for the first time bcIng
called 10 the tact that no final judgment j. found
in the record, such point not having been made
in the briefs upon which the case submitted,
the writ of error must be dismissed
j. w. Price, for Plaintiff in Error; Attorney
General Raney, for the State.
Martha J. Smith, Appellant VS. Samuel T. Cur
lis. Appelce-Columbia county. Malion 20
dismiss Appeal
RANDALL. &. J.:
/. While the act requiring upon appeal that a
true copy of proceedings of the Circuit Csurt
shall be filed with the clerk of the Suprrme
Court by the first dry oi the succeeding term
thereof, and thai a failure 10 file the copy makes
II the duty of The court, on motion ot the adverse
party, Ia dismiss the appeal unless good can~c bc
shown for the omission. the court will determine
upon the facts in each case. whether good cause
is shown.
An appeal may be- perfected by c.,nplain-
ant or defendant in ehanccry from a final .iecrcc
without giving bond and securiry or paying the
cost of The suit a required in suits AT law.
Motion denied
$ L. Nlblack, q p R,ney, for Appellant; C.
X King, tor Aplellre.
joseph " Russ, Appellant, " John b Gilbert
and Louisa {. Gllbcn, Appellees-Jackssn
county.
RANDALL. C. J.:
|. The opening of a dcfaHll for want of 4 plea
is within the sound discretion ni the cuurt, and
this court will nni interfere unless there has been
"A gross abuse OF that discretion. Ii must appear
that the ends OF justice require that The defend
AM ne permitted 10 lhtrt 10 warrant the reversal
oi an order refusing Ia open default. purely
discretionary order will not be reversed
, Where pleas had been prepared and LEFT
with party to be sworn {" and filed, and the
party forgot TO file them in time prevent a de-
fault, and on an application Ia open Ihr slelauli
no sworn plea Ia the merits was rendered, no afTi-
dayit of facts showing substantial dtIensc upan
the merits, and no proof that the party had
stated or exhibited to his attorney all the facts of
his case upon which counsel adv ised him that hs.
had a substantial defense upon the merits weFs.
read upon The motion, such application is al
dressed merely TO the favor "t the court and not
rs matter of in iurlherancc of Justice
10 ,...ll. When IA defepdapt makea dsPa tRK iIRd
right of recovery, hut be may upon inquest con-
test the amount of damagcs In such case all
the plaintiff is required Ia prove the defend
ant is permitted To conirovert Is The amount of
damages.
A. Section % of the act Of 1922 (McClrllans
Dig. S22 37l providing that the appearance If
a defendant by attorney will prevent default
for not pleading, is repealed by the second and
sixth sections OF the Practice act OF 1873, Chap
Ter 1898
5. A default for not pleading may be entered
on the Fourth ol July if thai be a rule day.
Judgment affirmed.
d. L. McKinnon, for Appellant; B. : Liddon.
for Appellces.
Mary A. Maitair and ). A. Mattair, her husband,
Appellants, VS.. Charles T. Card, Alminisira-
tor, etc, of Luther d. Alexander, Appellee
Duval county
RANDALL, c. j.:
L. A bill To procure the reversal, alteration or
explanation OF "A decree made in a former suit
except for fraud in obtaining such decree, il
" bill of review" Such bill can only he brought
upon error in law appearing on the face of the
decree without examination of matters of fact.
or upon new mailer discovered after the decree
which could not have been used when the decree
was made, unless The decree appears 10 have
been made in violation of law.
p The validity and sufficiency of mortgage
and the capacity OF the parties executing il being
adultsl established by the decree of f0reclos-
ure, and such decree is conclusive against the
parties, unless reversed on appeal and cannot be
set aside or annullcd by hin Of review except
upon newly discovered evidence
= The due execution Of n mortgage of home
stead is established by decree subjeciing the
property 10 sale 10 pay the mortgage upon bill
To fOreclose il.
T. A judgment or decree unreversed is conclu-
sive upon parties and estops them from setting
up in new suit brought To annul or sci IL aside
any matter of defense of which The parties could
have availed themselves in the original proceed-
ing, the evidence Of the facts constituting the de-
fense having been known To the parties in due
time
Decree affirmed
G. p. Cooper & ]. G. Cooper, for Appellants;
George Wheaton Deans, for Appellee
Eli Freeman, Plaintiff in Error vs. The State af
Florida, Defendant in Error-Madison county.
VAN VALKENBURGH j.:
l. In the trial on an indictment for perjury. 10
secure a conviction, il is not sufficient 10 prove
that The defendant at different times testified To
two oopposite things irreconcilable with each other
There must be testimony outside Of his own con-
Trajectory statements as TO which of such state
ments is false
2 Courts cannot take cognizance of the ordi-
nances OF an Incorporated town. They are sub
jects of proof In an indictment Tor perjury as
signed upon testimony given IN q mayors curt
on the trial for a violation of a municipal ordi-
nance, the indictment should 50 charge il, and
the evidence should prove IT,
Judgment reversed.
G. J. Stripping, for Plaintiff in Error: Atsor-
ney General Raney. Tor the Stale
Christopher G. Higginbotham, Plaintiff in Error.
va The Stale OF Florida, Defendant in Error
Marion county.
VAN VALKENBURGH, j.:
l. The defendant on trial in a criminal pro-
ceeding, has a right TO be heard in making =
statement under OATH of his or her defense nm
der Chapter 1916, Laws of 1870, at any lime be-
fore the case is submitted 10 the jury
z. III law creating criminal offense is re-
pcalcd, such repeating Law containing no saving
clause preventing the operation Of the repeal as
to causes then pending, or continuing the repealed
law in force as TO pending prosecutions or vinln-
tons OF the then existing law, after the repeating
law takes effect, no further proceedings can be
taken under the law so repealed TO enforce the