McIver v. Croom , 60 Fla. 123 ( 1910 )

Taylor, J.

The plaintiffs in error as plaintiffs below sued the defendant in error as defendant below in the circuit court of Marion county. At the trial the jury returned a verdict for sixty-seven dollars for which judgment was rendered in favor of the plaintiffs against the defendant, which sum being considerably less than the plaintiffs claimed in their suit, the plaintiffs moved for a new trial upon the ground that the verdict was not supported by the evidence and was contrary to the evidence. This motion was denied, and the plaintiffs below bring the case here for review by writ of error. The denial of the plaintiffs’ motion to strike certain pleas of the defendant is assigned as error.

In the case of Hubbard v. Anderson, 50 Fla., 219, 39 South. Rep., 107, this court has announced the following rule to govern the striking out of pleas: “To authorize the striking out of a plea, it must be not only informal and bad, but it must be wholly irrelevant.” We cannot say that the two pleas that the court below refused to strike out were wholly irrelevant or that they did not present a legitimate issue in the case. This assignment, therefore, fails. There was evidence in the case on behalf of the defendant upon which the verdict returned by the jury could very well have been predicated, and this being true this court cannot disturb it, there being nothing shown to indicate that the jury were influenced by anything outside of the evidence in the case.

Finding no error the judgment of the court below in said cause is hereby affirmed at the cost of the plaintiffs in error.

Hooker and Parki-iill, J. J., concur. Shackleford and Cockrell, J. J., concur in the opinion. Whitfield, C. J., not participating.