Volume 84 — Florida Reports

<p>A Writ of Error to the Circuit Court for Duval County; George Couper Gibbs, Judge.</p>

<p>A Writ of Error to the Circuit Court for Duval County; George Couper Gibbs, Judge.</p>

<p>Where the evidence fully sustains a verdict of murder in the first degree charged to have been" committed “unlawfully and from a premeditated design to effect the death of” the person killed, the mere omission of the word “design” from one of the charges given, is not in view of other charges given and upon a.consideration of the whole record, .harmful or. reversible error.</p> <p>Headnotes by Mr. Justice Ellis, on rehearing.</p> <p>1. Upon the trial of an indictment for murder in the first degree a charge given by the court to the jury, that if they should find from the evidence beyond a reasonable doubt “that the defendant unlawfully killed the deceased at the time and place and by the means charged in the indictment and that he did so from a premeditated on his part to effect the death of the deceased,” is erroneous for the omission of the word “design.”</p> <p>2. It is not within the power of the court to set at naught the words of the statute defining the crime of murder and assert that one on trial for such crime is not denied a fair trial according to the forms and procedure of law when the offense with which the defendant is charged in the indictment is incorrectly defined by the court in an instruction to the jury.</p> <p>3. The statute requires the charge in a capital case to be wholly in writing and it should be given to the jury literally as it is written.</p>

<p>A Writ of Error to the Circuit Court for Wakulla County, E. C. Love, Judge.</p>

<p>-1. . Where a railroad company admits another railroad company to the joint common use of its tracks, the owning company is. liable to- third persons for the negligence of the other company while enjoying the right of such use.</p> <p>2. The effect of Sections 4538 and 4540, Revised' General Statutes of 1920, in this action against the Seaboard Air Line Railway Company for an injury caused by a train of the Gulf Coast Railway being operated on the track ,of the Seaboard Air Line Railway Company'is to eliminate the element of agreement in the use of the defendant’s track hy the Gulf Coast Railway and to give to the latter company a right to use the tracks of the defendant for the purposes stated in the statutes without the defendant's consent, thereby in law relieving the defendant -of liability for negligence of the Gulf Coast Railway in so using defendant’s track not participated in by the defendant.</p>

<p>Under the provisions of Sections 10, 11 and 17 of Article XII of the State Constitution, Chapter 8639, Acts of 1921, providing for the issuance by the county board.of public instruction of long term interest bearing coupon warrants for the purpose of providing funds to acquire, build and equip modern public high school buildings in stated Special Tax School Districts in the county, the principal and interest of said warrants to be paid from the general school tax levy in the county to be made annually is invalid and inoperative.</p>

<p>A Writ of Error to the Circuit Court for Jackson County, C. L. Wilson, Judge.</p>

<p>No material or harmful errors of law or procedure being made to appear in the record of the trial, the judgment herein of conviction of murder in the second degree is affirmed.</p>

<p>1. When a summons in chancery under Chapter 7838 Laws of 1919 is in due form and served upon the defendant who appears specially for the purpose of attacking the summons or the service of it, the defendant is required to make the motion to quash the writ or the service before the rule day upon which, under the statute, he is required to plead, answer or • demur to the bill.</p> <p>2. Section 25C2, Revised General Statutes, which provides that an infant may sue by next friend and in all cases whatsoever idiots and lunatics by their guardians does not apply to persons of unsound mind before they are adjudged to be insane.</p> <p>3. An aged person, who because of infirmities of age or other physical weakness is of unsound mind and not capable of understanding the nature and effect of her business transactions, may sue by next friend appointed by the court for relief against her improvident contracts into which she may have been misled to her injury.</p> <p>4. When a suit in equity is brought by an aged person alleged to be of unsound mind but who has not been adjudged to be a lunatic, and a next friend has been appointed by the court to conduct such suit and during the pendency of the suit such person is adjudged to be a lunatic and a guardian ,of her person and estate appointed, such guardian has no control of the • suit begun by the next friend and should take no part in it.</p> <p>5. The guardian of an insane person who was adjudged to be insane after she had by a next friend duly appointed, commenced a suit in equity for relief against contracts to her injury into the making of which she is alleged to have been misled, will not be permitted to waive the rights of h-is ward in such litigation and control the suit instituted in her behalf.</p>

<p>A suit in equity in which a deccree.of dismissal has been entered and an appeaal is taken from the decree cannot be set aside, ignored and put at naught by a suit subsequently brought by the defendant against the appellant to remove an- alleged cloud upon the title to real estate alleged to be caused by the allegations contained in the bill of the suit which has been appealed.</p>

<p>1. Rule 23 of the rules of the Supreme Court providing for voiutary dismissal of causes in vacation contemplates the filing of a praecipe in this court signed by the attorneys of record for plaintiff in error and defendant in error. If the praecipe for dismissal is based upon a stipulation signed by counsel for plaintiff in error and defendant in error, the stipulation should accompany the praecipe.</p> <p>2. Where the parties to a cause have agreed among themselves upon a settlement of the cause and a dismissal of it in this court and this court is advised of such settlement and agreement to dismiss, the court will dismiss it of its own motion.</p> <p>3. All persons named as defendants in a joint judgment against them must join in prosecuting a writ of error to such judgment, otherwise the writ of error will he dismissed.</p>

<p>No material or harmful errors of law or procedure being made to appear in the record of the trial, the judgment herein of conviction of perjury is affirmed.</p>

<p>A Writ of Error to the Circuit Court for Dade County; Ii. Pierre Branning, Judge.</p>

<p>An Appeal from the Circuit Court for Dade County; H. Pierre Branning, Judge.</p>

<p>An Appeal from the Circuit Court for Dade County; H. Pierre Branning; Judge.</p>

<p>No material or harmful errors of law or procedure being made to appear in the record of the trial, the judgment herein of conviction of murder in the second degree is affirmed.</p>

<p>A Writ of Error to the Court of Record for Escambia County; C. Moreno Jones, Judge.</p>

<p>1. Equity Rule 71 provides: “Three months, and no more, shall be allowed for the taking of testimony after the case is at issue, unless the judge shall, upon special cause shown by either party, enlarge the time; and no testimony taken after such period shall be allowed to be read in evidence at the hearing.”</p> <p>2. The matter of extending the time for the taking of testimony in an equity suit is for the court below to decide, resting ■ within the sound judicial discretion of such court, and ordinarily the determination of this question will not be disturbed by an appellate court, yet such ruling is reviewable ■on appeal, and where it is plainly made to appear that there has been abuse of this judicial discretion, it is the duty of an appellate court to interpose and correct the same.”</p> <p>. 3. IVIiere repeated orders are made upon mere ex parte motion of counsel with no showing of “special cause” for an extension of time for taking testtimony in a chancery cause, as is expressly required hy Rule 71," such orders will he reversed for appropriate procedure.</p>

<p>■ A Writ of Error to the Circuit Court for Nassau County; George Couper Gibbs, Judge.</p>

<p>A Writ of Error to the Circuit Court for Marion County; W. S. Bullock, Judge.</p>

<p>An Appeal from the Circuit Court for. Santa Rosa County; A. G. Campbell, Judge.</p>

<p>An Appeal from the Circuit Court for Osceola County; C. O. Andrews, Judge.</p>