Opinion
No. C-119.
February 14, 1961. Rehearing Denied March 2, 1961.
Appeal from the Circuit Court, Franklin County, Ben C. Willis, J.
Ervin, Buford Pennington, Tallahassee, for appellants.
Shuler Shuler, Apalachicola, for appellees.
In this appeal by the plaintiffs-appellants from a final decree of the Circuit Court for Franklin County dismissing their complaint, the record on appeal contains nothing but the amended complaint, the answer thereto, the final decree appealed from, and the notice of appeal. The decree recites that a hearing was held on the pleadings, the evidence of the parties, the briefs, and argument of counsel, and then sets forth the findings of fact made by the court upon the evidence and the conclusion of law that the plaintiffs were not entitled to a rescission of the contract which they alleged was fraudulently made by the defendants-appellees. There is no record before us of the evidence that had been adduced before the Circuit Court when it entered the final decree. It is basic that an appellate court must found its judgments upon the official record before it. The duty is upon an appellant to demonstrate from the record that the order, judgment, or decree appealed from was erroneously or illegally entered by the lower court. If the appellant fails so to demonstrate, the appellate court is normally left with no recourse but to enter an order of affirmance. In addition to this impelling consideration, this final decree comes to us carrying the presumption of validity and, since this is a suit in equity, the chancellor who entered the final decree did so both as a judge of the law and as the trier of the facts. Under these circumstances we cannot say that the chancellor abused his judicial discretion in entering the final decree, which, therefore, must be and is affirmed.
STURGIS and CARROLL, DONALD K., JJ., concur.
WIGGINTON, C.J., specially concurs.
By his final decree appealed in this case the chancellor set forth extensive findings of fact based upon the evidence adduced before him at the trial. It is the position of appellants that the facts as found by the chancellor and set forth in his decree entitle them to the relief prayed by their complaint, and that the court erred as a matter of law in denying that relief and dismissing the cause.
We have carefully reviewed the decree appealed and find that there is set forth therein certain findings of fact on which the evidence is not in conflict. We cannot agree with appellants that the uncontradicted facts entitle them to the relief sought by their complaint.
Following a pre-trial conference the chancellor entered an order setting forth the law applicable to the issues involved in the cause. It was there held that the plaintiffs must show that the defendants have made a false representation of a material matter which representation the purchaser had a right to rely on, and which representation the plaintiffs in fact did rely on to their detriment. It is an established principle in this state that in a suit seeking rescission of a contract to purchase property based upon fraud the fraudulent representations relied upon must be established by clear and convincing proof. By his final decree the chancellor held that the evidence on this crucial issue was in sharp conflict and equally balanced as between the litigants. He therefore concluded that plaintiffs had failed to carry the burden of proof on the controlling issue involved in the case and had therefore failed to establish their right to the relief sought. Indulging the presumption that the chancellor's summary of the evidence and findings of fact set forth in his decree reasonably conform to the evidence adduced before him and are therefore presumptively correct, it cannot be said that the appellants have clearly demonstated error in the decree. For this reason I concur in the opinion of affirmance.
Bell Corp. v. Bahama Bar Restaurant, Fla. 1954, 74 So.2d 292.