American Nat. Bank of Jacksonville v. Marks Lumber & Hardware Co.

• Decision Date: 24 March 1950
• Citation: American Nat. Bank of Jacksonville v. Marks Lumber & Hardware Co., 45 So.2d 336 (Fla. 1950)
• Court: Florida Supreme Court
• Parties: AMERICAN NAT. BANK OF JACKSONVILLE v. MARKS LUMBER & HARDWARE CO.

Page 336

45 So.2d 336

AMERICAN NAT. BANK OF JACKSONVILLE v. MARKS LUMBER & HARDWARE CO.

Supreme Court of Florida, en Banc.

March 24, 1950.

Rehearing Denied April 18, 1950.

Smith, Fant & Axtell, Jacksonville, for petitioner.

Daniel & Poucher, Jacksonville, for respondent.

ADAMS, Chief Justice.

We have here a petition for certiorari to review a judgment of the Circuit Court of Duval County which affirmed a judgment of the Civil Court of Record of Duval County.

The alleged error, sought to be corrected, occurred in an action in the Civil Court of Record wherein a writ of garnishment was served upon petitioner. Petitioner answered in effect that--petitioner had a lien upon the funds by virtue of the following language in a note which it held made by defendant. 'And for any other liabilities to said bank, whether due or not due, or hereafter arising, the undersigned also hereby gives to said bank a lien upon all property or securities given to or left in possession of the said bank by the undersigned, and also upon any balance of the deposit account of the undersigned with the said bank.' The Civil Court of Record held against the lien and gave judgment against petitioner. This judgment was appealed to the Circuit Court and affirmed.

The only question which we consider is whether certiorari is available to review the alleged error.

Ordinarily we do not announce an opinion where certiorari is denied. In this instance we feel that an expression from us would be helpful to the bar. Under Section 5 of Article 5, Florida Constitution, F.S.A., we have no appellate jurisdiction of this case. The Circuit Court of Duval County, however, did have final appellate jurisdiction of the cause by virtue of Sec. 33.11, Fla.Stat.1941, F.S.A., enacted pursuant to Section 11, Article 5, Florida Constitution. Further review if had in the Supreme Court must by certiorari. This Court has the power to issue the writ within guarded discretion as set forth in numerous precedents. See Jacksonville T. & K. W. Ry. Co. v. Antone Boy, 34 Fla. 389, 16 So. 290; Mutual Benefit Health & Accident Ass'n v. Bunting 133 Fla. 646, 183 So. 321, and cases therein cited.

The rule was long ago announced by us in Jacksonville T. & K. W. Ry. Co. v. Antone Boy, supra [34 Fla. 389, 16 So. 291]. '* * * The office of the common-law certiorari, as declared by the Illinois court, is to have the entire record of the inferior court brought up for inspection, in order that the superior court may determine therefrom whether the inferior court had jurisdiction, or had exceeded its jurisdiction, or had failed to proceed according to the essential requirements of the law, where no appeal or other direct means of reviewing the proceeding is given. Donahue v. County of Will, 100 Ill. 94; Hyslop v. Finch, 99 Ill. 171. See, also, Wedel v. Green, 70 Mich 642, 38 N.W. 638. A distinction is made by some courts between cases where the writ goes to inferior courts of record and cases where it goes to officers or boards exercising only quasi judicial powers in proceedings of a summary character out of the course of the common law. In the first class of cases it is held the record only can be examined to ascertain whether such courts have acted within the scope of their jurisdictional powers, while in the second the record will be examined not only to see whether such officers or boards have kept within their jurisdictional powers, but whether or not they have acted strictly according to law; and errors and irregularities committed by them will be corrected. * * *' While there have been many variations on the application of this rule, it has necessarily remained...