Opinion
February 7, 1950. On Rehearing En Banc September 19, 1950.
Appeal from Circuit Court, Highlands County; D.O. Rogers, Judge.
Mary Schulman, Okeechobee, and Liddon Parker, Fort Pierce, Hall Hedrick, Miami, and James W. Moore, Sebring, for appellant.
Lewis E. Purvis, Arcadia, for appellees.
Affirmed upon authority of Nelson v. State ex rel. Quigg, 156 Fla. 189, 23 So.2d 136 and cases therein cited. See also The City of Miami et al. v. Huttoe, Fla., 38 So.2d 819; Blanchard et al. v. McCord et al., Fla., 40 So.2d 457.
ADAMS, C.J., and CHAPMAN, SEBRING and HOBSON, JJ., concur.
On Rehearing
In our original opinion we affirmed the Final Decree entered by the Chancellor because we found substantial evidence which, in our judgment, supported said Final Decree. Appellant now suggests that much of the evidence, substantial though it may have been, was incompetent.
In his petition for rehearing appellant contends, among other things, that upon our initial consideration of this case we failed to observe from the record that upon many instances during the progress of the taking of testimony valid objections to certain hearsay testimony were made which were never ruled upon by the Chancellor; that the Chancellor failed or refused to rule upon said objections although after all the testimony, except that which was offered in rebuttal, had been introduced a request was made to the Chancellor by counsel for appellees, in the presence of counsel for appellants, that rulings be made upon the several objections (upon objections rulings had been reserved) and that the court did not rule then or at any time upon said objections; that such request having been made in the presence of appellant's counsel, it was unnecessary and useless for him to reiterate the request for rulings; that the failure to rule on these objections was manifestly prejudicial to appellants because if the lower court had ruled properly on each objection there would have been no evidence in the record to justify the findings and the Final Decree entered by the Chancellor; that the only remaining competent evidence of the joint venture which was alleged by the appellees was the written instrument (Plaintiff's Exhibit # 1) which was made and signed in February, 1947, some four and a half months after the joint venture or partnership was alleged in the Bill of Complaint to have been entered into and after the purchase on October 25th, 1946, of the cattle alleged to form the basis of the joint venture or partnership and that there was no new consideration for the making and signing of the agreement at that time; moreover said written instrument, although it recited that the parties thereto had entered into a joint venture, failed to set forth two essential elements of a joint undertaking and the competent evidence otherwise failed to prove said essential elements, to-wit: (a) mutuality of control of the joint adventure, business and property, and (b) agreement to share losses and expenses; that since the Chancellor failed or refused to rule upon the various objections, this Court must assume that the Chancellor in making his findings and entering the Final Decree considered all of the evidence, including the hearsay evidence, to which objections should have been sustained and that appellant was prejudiced thereby because he was entitled to a consideration and evaluation by the Chancellor of only that evidence which was competent and that such competent evidence did not constitute a legally sufficient basis for the entry of the Final Decree which was entered by the Chancellor.
We must agree with appellant's contentions except the one to the effect that the written agreement, considered in the light of other competent evidence, was insufficient to make a prima facie case for the appellees. It is true that said written instrument did not specifically set forth that there should be mutuality of control of the joint adventure, business and property, nor did it contain an express agreement that losses and expenses should be shared by the parties thereto. However, upon a consideration of all of the competent evidence, we cannot say that appellees at the conclusion of their case wholly failed to make a showing sufficient to shift to appellant the duty or obligation of going forward with the evidence.
We do not deem it appropriate to assume the burden of specifically pointing out each and every objection which was well taken upon which the Chancellor neglected to rule, although we find that most of the objections were well founded and should have been sustained. We have in mind those objections which were made to the testimony of witnesses who were permitted to testify as to what the decedent during his lifetime had told them regarding the alleged joint adventure. Such testimony was clearly hearsay. However, the Chancellor, not this Court, should first make rulings upon these objections as well as the motions to strike, and then he should re-evaluate the competent evidence remaining in the record after he has made his rulings.
The Chancellor, in his final decree, made the following recital: "* * * having given all the testimony and exhibits such probative force as the Court feels the same are entitled finds that * * *." (Emphasis supplied.) But if no such statement had been made by the Chancellor we would be required to assume that he considered the hearsay evidence, objections to which should have been, but were not, sustained, in the absence from the record of any rulings thereon prior to the entry of the final decree. 53 Am.Jur. 116, Sec. 133. This record discloses a situation identical with the one which confronted us in the case of Thompson, Executrix, v. Freeman, 111 Fla. 433, 149 So. 740, 742. We established the law of this jurisdiction when, in that case, we said: "To permit evidence to be tentatively offered and received in the course of a hearing or trial with the announcement that objections timely interposed to it would be reserved for ultimate decision on the question of striking from the record is equivalent to overruling the objections, where the court decides the case without making any affirmative ruling actually eliminating the testimony from the record."
It is possible, had the Chancellor considered only the competent evidence, he might have made different findings and conceivably might have entered a final decree favorable to the appellant. We do not conclude that he should have done so, but only decide that the final decree should be reversed with directions to the Chancellor that he rule on all of the objections upon which he originally failed, refused, or neglected to rule, and that after making his rulings he should re-evaluate the remaining competent evidence and again enter a final decree.
We do not pass upon other contentions made by appellant, such as his suggestion that the Chancellor committed reversible error in failing to grant appellant's prayer for an allowance of a reasonable sum for the upkeep of eight horses which had been kept by appellant for appellees' testator at his request, and his insistence that at least one of the bulls in controversy should have been declared to be the property of appellant because the uncontroverted testimony of all witnesses was that appellant had paid appellees' testator for said bull. After the Chancellor enters another final decree in accordance with our directions the necessity for a renewal of these contentions may or may not exist.
Reversed, with directions.
TERRELL, THOMAS, SEBRING and ROBERTS, JJ., concur.
ADAMS, C.J., and CHAPMAN, J., dissent.