Volume 61 — Florida Reports

<p>1. Section 13 of Article IV of the State Constitution authorizes the Justices of the Supreme Court to render an opinion to the Governor only in interpreting a portion of the Constitution as it affects an executive power or duty of the Governor.</p> <p>2. An executive duty appertains to the execution of laws as they exist.</p> <p>3. Section 19 of Article XVI of the Constitution providing that “No convention nor legislature of this State shall act upon any amendment of the Constitution of the United States proposed by Congress to the several States, unless such convention or legislature shall have been elected after such amendment is submitted,” does not relate to or affect any executive power or duty of the Governor, and the Justices of the Supreme Court-are not authorized to interpret such provision in an opinion thereon requested by the Governor under Section 13 of Article IV of the Constitution.</p>

This case was decided by Division A. Writ of error to the Circuit Court for Columbia County. The facts in the case are stated in the opinion of the court.

; .This case was decided by Division B. ■ Writ of error to the Circuit Court for Sumter County. The facts in the case are stated in the opinion of the court.

This case was decided by the Court En Banc. Writ of error to the Circuit Court for St. Lucie County. The facts in the case are stated in the opinion of the court.

This case was decided by Division A. Writ of error to the Circuit Court for St. Lucie County. The facts in the case are stated in the opinion of the court.

Tlxis case was decided by Division A. Writ of error to the Circuit Court for Holmes County. The facts in the case are stated in the opinion of the court.

This case was decided by Division A. Writ of error to the Criminal Court of Record for Du-val County. The facts in the case are stated in the opinion of the court.

This case was decided by Division B. Writ of error to the Circuit Court for Jackson County. The facts in the case are stated in the opinion of the court.

This case was decided by Division A. Writ of error to the Criminal Court of Record for Suwannee County. The facts in the case are stated in the opinion of the court.

This case was decided by Division B. Writ of error to thS Circuit Court for Citrus County. The facts in the case are stated in the opinion of the court.

<p>1. Under a plea of not guilty, the presumption of innocence of the accused follows him until his guilt is proven beyond a reasonable doubt.</p> <p>2. In a criminal case, the establishment of a prima facie case does not take away from the defendant the presumption of innocence, but leaves that presumption to operate in connection with, or in aid of, any proofs offered by him, or arising out of the evidence to rebut or impair the prima facie case made out by the State. A circumstance aided by that presumption may so far rebut or impair the prima facie case, as to render a conviction upon it improper.</p> <p>3. Although by statute certain facts are made presumptive evidence against the defendant in a criminal case, if he denies them and adduces proof in rebuttal, the .jury must be satisfied of his guilt beyond a reasonable doubt.</p> <p>4. To constitute the crime of breaking and entering or entering without breaking with intent to commit a misdemeanor the defendant must have had an intent to commit the misdemean- or in the house. This intent is the gist of the offence, and it . is not necessarily implied from the simple fact of entering the house.</p> <p>5. The question whether the defendant had a criminal intent is one of fact to be decided from all the circumstances of the case.</p> <p>6. Evidence examined and found insufficient to support a verdict of guilty of entering a dwelling house with intent to commit petit larceny, although the defendant was found in the house.</p>

This case was decided by Division B.. Writ of error to the Circuit Court for Leon County. The facts in the case are stated in the opinion of the court.

This case was decided by Division A. Writ of error to the Criminal Court of Record for Escambia County. The facts in the case are stated in the opinion of the court.

This case was decided by Division A. Writ of error to the Criminal Court of Record for Walton County. The facts in the case are stated in the opinion of the court.

<p>A person’s dwelling house is a castle of defense for himself and those rightfully in his house, and when another attacks or invades one’s dwelling in a threatening manner under such circumstances that the owner has reason to believe and does believe that he is in danger of losing his life or suffering great bodily harm, he is not obliged to retreat, but may stand his ground and meet any attack made upon him with such force as under all the circumstances he has reason to believe and does believe is necessary to save his life or protect himself from great bodily harm, and this rule is applicable to all persons without regard to their moral conduct in other respects.</p>

This case was decided by Division A. Writ of Error to the Criminal Court of Eecord for Walton County. The facts in the case are stated in the opinion of the court.

This case was decided by Division A. Writ of Error to the Circuit Court for DeSoto County. The facts in the case are stated in the opinion of the court.

This case Avas decided by Division A. Writ of error to the Circuit Court for Washington County. The facts in the case are stated in the opinion of the court.

<p>This case was decided by the Court En Banc.</p> <p>Writ of error to the Criminal Court of Record for Hills-borough County.</p>

This case was decided by the Court En Banc. Writ of error to the Circuit Court for Duval County. The facts in the case are stated in the opinion of the court.

This case was decided by División B. Writ of Error to the Circuit Court for Madison County. The facts in the case are stated in the opinion of the court.

This case was decided by Division A. Writ of error to the Circuit Court for Leon County. The facts in the case are stated in the opinion of the court.

<p>This case was decided by the Court En Banc.</p> <p>Writ of error to the Circuit Court for Suwannee County.</p> <p>The facts in the case are stated in the opinion of the court.</p>

This case was decided by Division A. Writ of error to the Circuit Court for Manatee County. The facts in the case are stated in the opinion of the court.

This case was decided by Division A. Writ of error to the Circuit Court for Brevard County.. The facts in the case are stated in the opinion of the court.

This case was decided by Division A. Writ of error to the Circuit Court for Walton County. The facts in the case are stated in the opinion of the court.

This case was decided by Division B. Writ of error to the Circuit Court for Jackson County. The facts in the case are stated in the opinion of the court.

This case was decided by Division A. Writ of error to the Circuit Court for Santa Bosa County. The facts in the case are stated in the opinion of the court.

This case was decided by Division B. Writ of error to the Circuit Court for Jackson County. The facts in the case are stated in the opinion of the court.

This case was decided by Division A. - Writ of error to the Circuit Court for Holmes County. The facts in the case are stated in the opinion of the court.

This case was decided by Division A. Writ of error to the Circuit Court for Leon County. The facts in the case are stated in the opinion of the court.

<p>This case was decided by Division A.</p> <p>. Writ of error to the Circuit Court for Taylor County.</p>

This case was decided by Division B. Writ of error to the Circuit Court for Jackson County. The facts in the case are stated in the opinion of the court.

This case was decided by Division B. Writ of error to the Circuit Court for Escambia County. Statement. Fannie M. Sutherland brought a suit at law for damages against The Pensacola Electric Company and The Escambia County Electric Light and Power Company, a corporation, and in March, 1910, filed four amended counts to her declaration. The first two counts are as follows: “3.

<p>This case was decided by Division A.</p> <p>Writ of error to the Circuit Court for Hillsborough County.</p> <p>The facts in the case are stated in the opinion of the court.</p>

<p>A single motion to vacate a judgment by default and to allow tbe filing of pleas tendered with the motion, is properly denied when no showing is made for vacating the default judgment, especially where the pleas that are tendered are defective.</p>

This case was decided by Division A. Writ of error to the Circuit Court for Duval County. The facts in the case are stated in the opinion of the court.

This case was decided by Division A. Writ of error to the Circuit Court for Hillsborough County. The facts in the case are stated in the opinion of the court.

This case was decided by Division B. Writ of error to the Circuit Court for Walton County. The facts in the case are stated in the opinion of the court. This case was reinstated.

This case was decided by Division A. Writ of error to the Circuit Court for Walton County. . The facts in the case are stated in the opinion of the court.

This case was decided by Division B. Writ of error to the Circuit Court for Volusia County. The facts in the case are stated in the opinion of the court.

This case was decided by Division B. Writ of error to the Circuit Court for Sumter County. The facts in the case are stated in the opinion of the court.

This case was decided by Division A. Writ of error to the Circuit Court for Leon County. The facts in the case are stated in the opinion of the court.

This case was decided by Division A. Writ of error to the Circuit Court for Escambia County. The facts in the case are stated in the opinion of the court.

<p>This case was decided by Division A.</p> <p>Writ of error to the Circuit Court for Alachua County.</p>

This was decided by Division A. Writ of error to the Circuit Court for Jackson County. The facts in the case are stated in the opinion of. the court.

This case was decided by Division B. Writ of error to the Circuit Court for Duval County. The facts in the case are stated in the opinion of the court.

This case was decided by Division A. Writ of error to the Circuit Court for Duval County. The facts in the case are stated in the opinion of the court.

This case was decided by the court En Banc. Writ of error to the Circuit Court for Marion County. The facts in the case are stated in the opinion of the court.

This case ivas decided by Division B. Writ of error to the Circuit Court for DeSoto County. The facts in the case are stated in the opinion of the court.

This case was decided by Division B. Writ of error to the Circuit Court for Duval County. The facts in the case are stated in the opinion of the court.

This case was decided by Division A. Writ of error to the Circuit Court for Volusia County. The facts in the case are stated in the opinion of the court.

This case was decided by Division A. Writ of error to the Circuit Court for Duval County. ' The facts, in .the case are stated in the opinion of the court.

This case was decided by Division A. Writ of error to the Circuit Court for Walton County. The facts in the case are stated in the opinion of the court.

This case was decided by Division A. Writ of error to the Circuit Court for Jackson County. The facts in the case are stated in the opinion of the court.

This case was decided by Division A. Writ of error to the Circuit Court for Alachua County. The facts in the case are stated in the opinion of the court.

<p>This case was decided by Division A.</p> <p>Tbe facts in the case are stated in the opinion of the court.</p>

This case was decided by Division A. Writ of error to the Circuit Court for Jackson County. The facts in the case are stated in the opinion of the court.

This case was decided by Division A. Writ of error to the Circuit Court for Duval County. The facts in the case are stated in the opinion of the court.

This case was decided by the Court En Banc. Writ of error to the Circuit Court for Volusia County. The facts in the case are stated in the opinion of the court.

This case was decided by Division A. Writ of error to the Circuit Court for Palm Beach County. The facts in the case are stated in the opinion of the court.

This case was decided by Division B. Writ of error to the Circuit Court for Suwannee County. The facts in the case are stated in the opinion of the Court.

<p>1. Where a cause is referred and the Referee hears the witnesses and sees them testify, Ms findings of fact are entitled to the same weight as the verdict of a jury.</p> <p>2. Where there is evidence to support the finding of. a Referee, it will not be disturbed or set aside by.an appellate court as being against the evidence where its propriety depends entirely upon the credibility of witnesses.</p> <p>3. Pleas in abatement, as they do not dehy the merits of plaintiff’s claim, but merely tend to delay the remedy, are not favored, and the greatest strictness is applied to them, and they will not lie aided in construction by any intendments. With them correctness of form is matter of substance, and any defect of form is fatal.</p> <p>4. Where a plea in abatement does not conform to the rules established as to such plea, the plaintiff is not compelled to demur to it, but may treat it as a nullity and have it stricken on motion.</p> <p>5. A plea of non-joinder of persons as defendants is defective in failing to state that the defendants who have been omitted are within the jurisdiction of the court, and in not stating, in an affidavit verifying the same, the places of residence of such persons.</p> <p>6. A plea of non-joinder of persons as defendants is defective because it does not aver that the omitted defendants are still alive.</p> <p>7. A plea of non-joinder of co-partners is defective when it fails to show that the defendant was in partnership with the persons who have been omitted at the time of the making of the note sued upon.</p> <p>S. Rule 21 of the Supreme Court Rules provides: “In addition to the submission of a cause on briefs as provided by the rules of this court, either party may orally argue the case, if desired, in which event a memorandum, for such oral argument shall be filed with the clerk at the time of filing briefs.” Held, this rule contemplates the filing of a memorandum separate from, and not merely endorsed upon, the briefs.</p>

This case was decided by the Court En Banc. Writ of error to the Circuit Court for Escambia County. The facts in the case are stated in the opinion of the court.

This case was decided by Division B. Writ of error to the Circuit Court for Marion County. The facts in, the case are stated in the opinion of the court.

This case was decided by Division A. Writ of error to the Circuit Court for Leon County. The facts in the case are stated in the opinion of the court.

<p>This case was decided by Division B.</p> <p>Writ of error to the Circuit Court for Palm Beach County.</p> <p>The facts in the case are stated in the opinion .of the court.</p>

This case was decided by the cburt En Banc. Writ of error to the Circuit Court for Escambia County. The facts in the case are stated in the opinion of the court.

This case was decided by Division B. Writ of error to the Circuit Court for Jackson County. ■ The facts in the case are stated in the opinion of the court.

This case was decided by Division B. Writ of error to the Circuit Court for Columbia County. The facts in the case are stated in the opinion of the court.

This case was decided by Division A. Writ of error to the Circuit Court for Suwannee County. The facts in the case are stated in the opinion of the court.

This case was decided by Division A. Writ of error to the Circuit Court for Leon County. The facts in the case are stated in the opinion of the court.

This case was decided by Division A. Writ of error to the Circuit Court for Bradford County. The facts in the case are stated in the opinion of the court.

<p>This case was decided by Division A.</p> <p>Writ of error to the Circuit Court for Escambia County.</p> <p>The facts in the case are stated in the opinion of the court.</p>

This case was decided by the court En Banc. Writ of error to the Circuit Court for Escambia County. The facts in the case are stated in the opinion of the court.

This case was decided by Division A. Writ of error to the Circuit Court for Duval County. The facts in the case are stated in the opinion of the court.

This case was decided by Division A. Writ of error to the Circuit Court for Marion County. • The facts in the case are stated in the opinion of the court.

This case was decided by Division A. Writ of error to the Circuit Court for Gadsden County. The facts in the case are stated in the opinion of the court.

This case was decided by Division A. Writ of error to the Circuit Court for Duval County. The facts in the case are stated in the opinion of the court.

This case was decided by Division A. Writ of error to the Circuit Court for Polk County. The facts in the case are stated in the opinion of the court.

This case was decided by Division A. Writ of error to the Circuit Court for Hillsborough County. t The facts in the case are stated in the opinion of the court.

This case was decided by Division B. Writ of error to the Circuit Court for Jackson County. The facts in the case are stated in the opinion of the court.

This case was decided by Division B. Writ of error to the Circuit Court for Jackson County. The facts in the case are stated in the opinion of the court.

This case was decided by Division A. Writ of Error to the Circuit Court for Nassau County. The facts in the case are stated in the opinion of the court.

This case was decided by Division B. Writ of error to the Circuit Court for Duval County. The facts in the case are stated in the opinion of the court.

This case was decided by Division A. Appealed from the Circuit Court for Marion County. The facts in the case are stated in the opinion of the court.

This case was decided by Division A. Appeal from the Circuit Court for Santa Rosa County. The facts in the case are stated in the opinion of the court.

This case was decided by Division A. Appeal from the Circuit Court for Suwannee County. The facts in the case are stated in the opinion of the court.

This case was decided by Division A. Appeal from the Circuit Court for Polk County. The facts in the case are stated in the opinion of the court.

This case was decided by Division A. Appealed from the Circuit Court for Duval County. The facts in the case are stated in the opinion of the court.

<p>1. Where the tona fide object of a suit is partition of land between common owners thereof, one of whom is the complainant and the others are defendants, the proceeding as to the rights and interests of the parties is direct and not collateral.</p> <p>2. An adjudication by the court that a deed of trust does not convey an estate of inheritance to the trustee, but that the instrument taken as a whole only confers upon the trustee a power to convey land in fee simple, does not divest an estate of inheritance, but merely adjudicates the character of the estate or power that was conferred by the deed of trust.</p> <p>3. The fact that the grantor in a deed of trust does not mention his children therein, does not deprive them of any right conferred upon them by law with reference to the property placed in trust.</p> <p>4. A decision of the court does not vest rights in those not parties to the proceeding.</p> <p>5. Where parties inherit under a statute they are not deprived of their rights thereunder when such statute is declared unconstitutional and afterwards declared to be constitutional, they not being parties to the case in which the statute was adjudged to be invalid, and the doctrine of stare decisis not being justly applicable.</p>

This case was decided by Division A. Appeal from the Circuit Court for Alachua County. Statement.

<p>This case as decided by Division A.</p> <p>Appealed from the Circuit Court for Duval County.</p>

This case as decided by Division A. Appeal from the Circuit Court for Yolusia County. The facts in the case are stated in the opinion of the court.

<p>1. Persons who own property at a town adjoining a railroad depot, and who, relying upon the continuance of the depot at the place, have improved the property, and “have enjoyed special facilities in the conduct of their business” incident to such location, have no right, on the ground of special and peculiar injury to their property rights, to enjoin the enforcement of an order of the Railroad Commissioners for the removal of the depot to another point at the town.</p> <p>2. Individuals have a right of access but not of proximity to a railroad depot.</p>

This case was decided by the court En Banc. Appealed from the Circuit Court for Escambia County. Statement. • The following statement was prepared by Mr. Justice Shackleford. This is an appeal by the defendants in the court below from an interlocutory order overruling their demurrer to the bill of complaint. In view of the contentions made by the respective parties litigant, it seems advisable to set out the pleadings in full, with the exception of the formal parts.

This case was decided by Division A. Appeal from the Circuit Court for Polk County. The facts in the case are stated in the opinion of the court.

This case was decided by Division A. Appeal from the Circuit Court for Taylor County. The facts in the case are stated in the opinion of the court.

This case was decided by Division A. Appealed from the Circuit Court for Alachua County. The facts in the case are stated in the opinion of the court.

This case ivas decided by Division A. Appealed from the Circuit Court for Gadsden County. The facts in the case are stated in the opinion of the court.

<p>■1. While an allegation in a bill in chancery for the removal of a cloud from the title to ascertain described lands that the complainant “now owns and holds” such lands, which are also alleged to be “wild and unoccupied, and not in the actual possession of any person,” may not be as precise as is desirable, it is sufficient to withstand an attack by demurrer, being an ultimate fact which the demurrer admits to be true.</p> <p>2. In a written instrument by which all the timber upon certain described lands is “granted, bargained, leased and conveyed” to the grantee named therein, his heirs and assigns, “for the purpose of boxing, working and otherwise using said timber for turpentine purposes,” the right to all the timber upon such lands for turpentine purposes became vested in the grantee immediately upon the execution of such instrument, and where it is further provided in such instrument that the grantee “may commence boxing, working and otherwise using said timber for turpentine purposes, or any portion thereof, at any time that” the grantee “may desire within twelve months from date,” and that the grantee “shall have the right to box, work and otherwise use said timber and every portion thereof for the full term of three years, being with reference to each portion of the timber from the time only that the boxing and working of such portion is commenced,” the contention that the lease expired “as to every portion of the timber four years from the date it was made” is untenable.</p> <p>3. With the wisdom or folly of contracts which they may be called upon to construe the courts have no concern.</p>

<p>1. A general demurrer to a bill of complaint, as for want of equity, will be overruled if there is any ground of equitable relief stated in the bill, even if there are any number of grounds of special demurrer.</p> <p>2. The practice of moving to dismiss bills of complaint for want of equity does not obtain in this State. .</p>

This case was decided by Division A. Appealed from the Circuit Court for Hillsborough County. The facts in the case are stated in the opinion of the court.

This case was decided by Division B. Appeal from the Circuit Court for Hillsborough County. The facts in the case are stated in the opinion of the court.

This case was decided by Division A. Appealed from the Circuit Court for Polk County. The facts in the case are stated in the opinion of the court.

<p>1. A husband without the wife’s consent has the right to establish the family domicile and it is her duty to live with him at his domicile if it is reasonably possible for her to do so. But if a husband by his own acts intentionally brings the cohabitation to an end, and by his own acts keeps it at an end for the statutory period, showing no evidence of a reasonable purpose to renew his marital relations, he is guilty of desertion and she is entitled to a divorce on that ground.</p> <p>2. A husband has no right to make it a condition of reconciliation with his wife, and of renewed marital relations that she shall convey to him her separate property. An offer of reconciliation must be made in good faith, and free from improper qualifications and conditions. .</p>

This case was decided by Division B. Appealed from the Circuit Court for Jackson County. The facts in the case are stated in the opinion of the court.

This case was decided by Division B. Appealed from the Circuit Court for Duval County. The facts in the case are stated in the opinion of the court.

This case was decided by Division A. Appealed from the Circuit Court for Hillsborough County. The facts in the case are stated in the opinion of the court.

<p>This case was decided by Division A.</p> <p>Appeal from the Circuit Court for Escambia County.</p> <p>The facts in the case are stated in the opinion of the court.</p>

This case was decided by the court En Banc. Appeal from the Circuit Court for Duval County. Statement. This appeal is taken' by the defendant below from an order overruling a demurrer to a bill for specific performance brought by Walter Overstreet, P. A. Cunningham and Arthur J. Cunningham.

This case was decided by Division B. Appealed from the Circuit Court for DeSoto County. The facts in the case are stated in the opinion of the court.

This case was decided by Division A. Appeal from the Circuit Court for Madison County. The facts in the case are stated in the opinion of the court.

<p>1. Land cannot be decreed and- partitioned as the homestead of a person who conveyed the same away in 1861, and died in 1867, before the adoption of the homestead Article of the Constitution of 1868.</p> <p>2. Where all the children in a family have arrived at their majority, upon the dissolution of the family by the permanent removal of its members, and the father dies leaving the mother as the sole remaining member of the former family, such mother, under these circumstances, ceases to be the head of the .family within the contemplation of our constitution, her former homestead loses its status as a homestead, and she may, unless otherwise incapacitated, devise the same by her last will.</p> <p>3. The homestead intended by our constitution to be exempted is the place of actual residence of the party and his family, and though a temporary absence will not deprive the claimant of his right, unless it appear that there was a design of permanent abandonment, yet a permanent abandonment of the homestead as a bona fide home and place of permanent abode strips it of its homestead character.</p> <p>4. The onus is upon the complainants to show clearly that the property claimed to be a homestead is in law and fact a homestead, and it behooves them to allege each fact clearly and definitely that is necessary to make out their case.</p>

This case was decided by Division B. Appealed from the Circuit Court for Duval County. The facts in the case are stated in the opinion of the court.

This case was decided by Division A. Appealed from the Circuit Court for Duval County. The facts in the case are stated in the opinion of the court.

This case was decided by Division A. Appeal from the Circuit Court for Jackson County. The facts in the case are stated in the opinion of the court.

<p>This case was decided by Division A.</p> <p>Appealed from the Circuit Court for Columbia County.</p> <p>The facts in the case are stated in the opinion of the court.</p>

This case was decided by Division A. Appealed from the Circuit Court for Manatee County. The facts in the case are stated in the opinion of the court.

This case was decided by Division B. Appealed from the Circuit Court for Taylor County. Tbe facts in the case are stated in the opinion of the court.

This case was decided by Division A. Appealed from the Circuit Court for Polk County. The facts in the case are stated in the opinion of the court.

This case was decided by Division B. Appealed from the Circuit Court for Columbia County. The facts in the case are stated in the opinion of the court.

This ease was decided by Division A. Appealed from the Circuit Court for Madison County. The facts in the case are stated in the opinion of the court.

This case was decided by Division B. Appeal from the Circuit Court for Jackson County. Statement. Held: and a large majority of the votes cast were in favor of the issue of such additional ten thousand dollar bond issue, and voted for said ten thousand dollars of bonds, which were five per cent twenty year bonds, five thousand of which was to be used for boring an artesian well, and consolidating the electric light and water plants,…

This case was decided by Division B. Appeal from the Circuit Court for Dade County. The facts in the case are stated in the opinion of the court/

This case was decided by the court Eu Banc. Appeal from the Circuit Court for DeSoto County.- The facts in the case are stated in the opinion of the court.

This case was decided by Division B. Appeal from the Circuit Court for Duval County. -The facts in the case are stated in the opinion of the court.

This case was decided by Division B. Appealed from the Circuit Court for i Palm Beach County. The facts in the case are stated in the opinion of the court.

This case was decided by Division A. Appealed from the Circuit Court for Palm Beach County. The facts in the case are stated in the opinion of the court.

This case was decided by Division A. This is a case of original jurisdiction. Statement. A motion 'to quash the alternative writ herein having been overruled, State ex rel. v. Atlantic Coast Line Ry. Co., 60 Fla. 465, 54 South Rep. 394, the respondent filed the following return: “Now comes the Atlantic Coast Line Railroad Company, respondent in the above entitled cause, and answering the alternative writ of mandamus, for answer says: 1.

. This case was decided by Division A. Appeal from the Circuit Court for Duval County. The facts in the case are stated in the opinion of the court.

This case was decided by the court En Banc. Appealed from the Circuit Court for Leon County. Statement. This appeal is from an order overruling a demurrer to a bill of complaint.

This case was decided by Division B. Appealed from the Circuit Court for Alachua County. The facts in the case are stated in the opinion of the .court.