Bishop v. Chillingworth

• Decision Date: 19 March 1934
• Citation: 154 So. 254,114 Fla. 286
• Court: Florida Supreme Court
• Parties: BISHOP et al. v. CHILLINGWORTH, Circuit Judge.

154 So. 254

114 Fla. 286

BISHOP et al. v. CHILLINGWORTH, Circuit Judge.

Florida Supreme Court

March 19, 1934

En Banc.

Original proceeding in mandamus by L. R. Bishop and others, as and constituting the Board of Commissioners of the Lake Worth Inlet District, Palm Beach County, against C. E Chillingworth, as Judge of the Circuit Court of the Fifteenth Judicial Circuit of the State.

Demurrer to the alternative writ of mandamus sustained in accordance with opinion.

COUNSEL Terry Gibson and Boozer & Boozer, all of West Palm Beach, for relators.

C. D Blackwell, of West Palm Beach, for respondent.

OPINION

DAVIS Chief Justice.

Relators were parties defendant in a suit at law wherein the jury's verdict was returned in favor of the opposite party on February 9, 1933. On February 13, 1933, defendants made their motion for an extension of time to February 20 1933, to file and present their motion for a new trial. The motion was granted and an order was entered accordingly allowing said defendants until February 20, 1933, to file, make, and present their motion for a new trial. See section 4498, Comp. Gen. Laws, section 2811, Rev. Gen. St. On February 20, 1933, defendants made and filed with the clerk of the circuit court their motion for a new trial. On March 8, 1933, the motion for a new trial was presented to the Honorable C. E. Chillingworth, circuit judge, whereupon plaintiffs presented their counter motion to strike defendants' motion for a new trial on the grounds, among other things, that said motion for new trial had not been presented within fifteen days of the rendition of the verdict, in accordance with the above-cited statute, and that no copy of said motion, together with three days' notice of the time when, and the place where, same would be presented and heard, had been served on plaintiffs or their counsel, as required by law. Bunch v. John, 85 Fla. 22, 95 So. 235.

On March 14, 1933, pursuant to a continuance by the court of the hearing on plaintiff's motion to strike the defendants' motion for a new trial, the matter came on for consideration. On that date after hearing the controversy, the circuit judge entered the following order:

'This cause was further presented by counsel upon the motion of the plaintiff to strike certain motions of the defendants, and upon the defendants' motion for venire facias de novo, and the matter was considered by the Court,

'It is my conclusion that the motion for a new trial and motion in arrest of judgment were not duly presented to the Judge within the required time.

'If I had any discretion in this matter I would much prefer to dispose of those motions upon their merits, rather than strike them, but I have no discretion, Thereupon:

'It is ordered and adjudged that plaintiff's motion to strike the defendants' motion for a new trial, and plaintiff's motion to strike the defendants' motion in arrest of judgment be granted; and that the defendants' motion for a venire facias de novo be denied. To which ruling defendants except. Exceptions noted.

'It is further ordered that thirty days be allowed for the purpose of settling such bill of exceptions, if any, as the Court may be authorized to settle.

'Done and ordered at West Palm Beach, Florida, this 14th day of March, A. D. 1933.

'C. E. Chillingworth, Circuit Judge.'

The proceeding now before us is one in mandamus to require the circuit judge to vacate his said, order and to forthwith make a ruling on defendants' motion for new trial (as well as a motion in arrest of judgment filed simultaneously therewith) by disposing of the same on its merits in lieu of striking it. The facts upon which relator relies for the relief prayed are in substance as set forth in the following affidavit attached to and made a part of the alternative writ of mandamus, identified by an indorsement thereon appearing to have been made by the circuit judge, but not otherwise authenticated and made a part of the record in the cause;

'State of Florida, County of Palm Beach

'This day personally appeared before me, a Notary Public of the State of Florida, authorized to take oaths and acknowledgments, Terry Gibson, who upon being duly sworn deposes and says:

'That on Monday, February 20th, 1933, I appeared before the Honorable C. E. Chillingworth, having with me and in my possession at that time and holding in my hand, Motions in the above entitled cause for a Venire Facias de Novo, Motion for a New Trial and Motion for Arrest of Judgment, and at that time stated to the Court to the best of my recollection and belief the following words, 'Judge, I have here Motions for a New Trial and Venire Facias de Novo and Motion to Arrest Judgment in that ejectment case we tried the other day, and I would like to have an appointment for hearing.' It is my further recollection that during the conversation regarding that appointment, these Motions were laid on the Judge's desk. Upon making the aforesaid request for hearing, I was advised that he was trying cases that week and the following week and that if I would call him later in the week, he would be glad to set a definite date; thereafter I took the said Motions to the Clerk's office where they were filed.

'Subsequently, to the best of my knowledge and belief, the following Thursday I again requested the Court for a date of hearing, at which time the said hearing was set for the following Wednesday, March 1st, 1933, Notice of said hearing was duly sent to the counsel for plaintiff on the 25th day of February, 1933, at which time the attorney for the plaintiff called your affiant on the phone stating that he would be in New Orleans before the Circuit Court of Appeals at the time set for said hearing, and requested that said hearing be postponed until his return, at which time your affiant, on a telephone conversation with C. E. Chillingworth, Judge of the above styled Court, changed the date of hearing until the following Wednesday, March 8th, 1933.

'Terry Gibson

'Sworn to and subscribed before me this 8th day of March, 1933.

'Mary Riddle, Notary Public, State of Florida at Large.

My commission expires; 11/14/34.'

'[N. P. Seal.]

The constitutional jurisdiction of the Supreme Court as an appellate court to ultimately review, modify, correct, or reverse a judgment at law after it is rendered by a circuit court of this state has its inception and attaches itself to the cause from the very moment that the suit is commenced in the court of original jurisdiction. This is true, although in practically all of the cases it is only after the issuance of a writ of error challenging some final decision in the case that any of the proceedings of the circuit court may be actually brought before the Supreme Court for the purpose of enabling it to exercise its appellate powers as a court of last resort.

Accordingly, in cases wherein the circuit courts have made orders or rulings or taken proceedings in cases at law pending before them, which orders or proceedings taken have the effect of unduly hindering or preventing the exercise of the appellate court's jurisdiction, as by destroying or making ineffective the right of the unsuccessful party to review the proceedings, acts, rulings, or orders of the inferior courts complained of, such acts, rulings, or orders can be corrected by mandamus in every case where the nature of the order, ruling, or act is such that no writ of error or appeal will lie therefrom, or where the remedy for same by appeal or writ of error is not a speedy, plain, complete, and adequate on in the premises. Barber Asphalt Paving Co. v. Morris, 132 F. 945, 66 C. C. A. 55, 67 L. R. A. 761.

To state the proposition another way; the power of an appellate court to review the judgment of an inferior court extends to the right to issue writs of mandamus in aid of appellate jurisdiction whenever it potentially exists, whether appellate jurisdiction has been actually invoked by writ of error or not. Thus the dominant power of an appellate court comprehends the right to issue its writ to an inferior court to enable the appellate court to protect that jurisdiction against possible circumvention, defeat, or evasion. Thus any inaction of the lower court which forestalls the entry by the latter court of appropriate rulings, orders, or a final judgment on matters presented to such inferior court for determination may be rectified by the appellate court in all cases where the matters presented to be ruled on by the inferior court are within the appellate court's judicial power ultimately to review and correct on a writ of error taken to the inferior court's judgment. In cases where so employed, a writ of mandamus is in the nature of a procedendo. Livingston v. Dorgenois, 7 Cranch, 577, 3 L.Ed. 444; Ex parte Bradstreet, 7 Pet. 634, 8 L.Ed. 810; Life & Fire Ins. Co. of New York v. Wilson's Heirs, 8 Pet. 291, 8 L.Ed. 949; In re United States, 194 U.S. 194, 24 S.Ct. 629, 48 L.Ed. 931; In re Virginia, 100 U.S. 313, 25 L.Ed. 667.

In Rast v. State, 77 Fla. 225, 81 So. 523, this court issued an order in the nature of a procedendo to require a criminal court of record to adjudge a convicted prisoner insolvent in order that he might obtain a proper transcript of the record for the prosecution of his writ of error to the judgment of conviction. In State ex rel. Garrett v Johnson, 150 So. 239, we recognized the principle that writs of mandamus and of prohibition are available to courts having final appellate jurisdiction, to compel appropriate proceedings to be taken within the jurisdiction of an inferior court. In State ex rel. Dowling...