Noel R. Raulerson, Appellant, vs. Rockner's Administratrix, Appellee, 17 Fla. 809

Mr. Justice Westcott delivered the opinion of the court. The judgment herein rendered is one judgment in two actions of the same kind with similar defenses between the same parties, the parties having consented to submit the two cases to the jury for trial at the same time. This judgment thus entered is* one of the errors assigned, it being claimed that there should have been separate verdicts and: judgments in each case. It is too late, after the agreement stated, no objection being taken at the time of verdict rendered, to urge objection to such irregularity upon a motion for new trial.

There are a number of other errors assigned, most of which we think are not well taken, but it is unnecessary, as there must be a new trial, to go into an elaborate discussion of them. This suit was originally instituted by Julius C. Rockner, and after his death revived by his adminis-tratrix, the respondent. During the progress of the trial, defendant being made a witness, was asked "if he knew of his own knowledge otherwise than by personal communication or conversation with Julius C. Rockner that he, Julius C.

Rockner, had notice of the fraud and failure of consideration before he obtained, or claimed to have obtained, possession of the notes?” To this question there was objection, and the question was excluded on the ground that' it was not admissible under

Chapter 1983, Laws, being

an act in relation to testimony in civil actions, approved February 14, 1874. We think this error. The subject of inquiry was not necessarily a "transaction” or "communication” between- this witness and the deceased intestate. This witness may have had in his possession a written acknowledgment, signed by Rockner in the presence of witnesses, admitting such knowledge, or he may have had other evidence of such knowledge not constituting a transaction or communication between himself and the deceased party within the meaning of the statute.

The effect of the ruling was to exclude such evidence, if it existed, and we think there must be a new trial. As a matter of course, if the witness, by his answer, attempts to speak to such prohibited matter, he will be stopped at once and the jury instructed .not to regard it. The judgment is reversed, and the cases will be remanded for a new trial to be had in each.