Brinson v. Tharin

• Decision Date: 29 March 1930
• Citation: 99 Fla. 696,127 So. 313
• Parties: BRINSON v. THARIN.
• Court: Florida Supreme Court

127 So. 313

99 Fla. 696

BRINSON v. THARIN.

Florida Supreme Court

March 29, 1930

En Banc.

Certiorari to Circuit Court, Duval County; De Witt T. Gray, Judge.

Action by A. C. Tharin against T. A. Brinson. Judgment for plaintiff was affirmed by the circuit court, and defendant brings certiorari. On motion to quash writ.

Granted.

TERRELL C.J., and WHITFIELD, J., dissenting.

COUNSEL

McCollum & Howell, of Bushnell, for petitioner.

Edgar W. Waybright and James Royall, both of Jacksonville, for respondent.

OPINION

ELLIS J.

In February, 1926, A. C. Tharin began an action at law against T. A. Brinson in the civil court of record for Duval county. The declaration contains five common counts, and one on a simple contract for a commission on the sale of real estate owned by the defendant, who employed the plaintiff to sell it. The declaration was finally completed and the last amendment to the sixth count filed November 23, 1926.

The case was tried on a plea of the general issue to all the counts and three special pleas to the sixth count. The first was equivalent to the general issue, as it denied the plaintiff's employment by the defendant. The second and third were, in substance, the same, as they denied that the plaintiff sold the land or effected the sale of it. There was a verdict for the plaintiff in the sum of $2,773.95, and judgment was duly entered on February 24, 1927, for the plaintiff. A motion for a new trial was made by the defendant and overruled by the court about a week afterward. An appeal was taken to the circuit court with a bill of exceptions which contained all the evidence according to the certificate of the judge and duly made up within the time allotted.

On February 2, 1928, the circuit court affirmed the judgment. A petition for a rehearing was filed eleven days afterward. An order staying the circuit court's mandate indefinitely was entered, and on the 10th day of March, 1928, the circuit court caused to be entered an order denying the petition. Three days afterwards the defendant petitioned the circuit court for a stay of the mandate until the disposition of the cause by the Supreme Court, as the defendant was then preparing a petition to that court for a writ of certiorari. The court granted an order staying the mandate for twenty days.

The writ of certiorari was issued on the 22d day of March, 1928.

The petition for the writ was filed in this court on the same day.

On May 4, 1928, Tharin moved this court to quash the writ on many grounds: First, that it affirmatively appears from the record that the petition for the writ was not filed within thirty days after the rendering of the judgment by the circuit court; the second, third, and fourth grounds aver that the record discloses that the civil court of record and the circuit court proceeded in the exercise of their jurisdictions, respectively, in accordance with the essential requirements of the law; the fifth, that no errors either of substantive law or procedure were committed by either court below and the evidence is sufficient to sustain the verdict. The remaining grounds of the motion are, in substance, that the petition is bad because there is nothing in the evidence which precluded a verdict for the plaintiff nor an affirmance of the judgment by the appellate court.

If the first ground of the motion is well taken, there will be no necessity for discussing the remaining grounds, unless the record discloses that those requirements of the law deemed essential to the administration of justice were not observed by the trial court or the appellate court.

The judgment of the civil court of record was affirmed by the circuit court on February 2d, and the petition for a certiorari was filed in this court on March 22d. Thus forty-eight whole days elapsed after the judgment of the circuit court before the petition was filed. Section 3322, Revised General Statutes 1920 (section 5167, Comp. Gen. Laws 1927), provides that the petition for certiorari shall be filed within thirty days after the rendering of such judgment by the circuit court. The section in full is as follows:

'Where the circuit court has rendered a judgment in any case appealed from the civil court of record as provided by this Title, it shall be competent for the Supreme Court to require, by certiorari or otherwise, upon petition of any party thereto, any such case to be certified to the Supreme Court for its review and determination, with the same power and authority in the case as if it has been carried by writ of error to the Supreme Court: Provided, That such petition must be filed within thirty days after the rendering of such judgment by the circuit court. The Supreme Court shall make such rules and regulations as may be proper for the exercise of its powers under this Title.'

The Constitution vests the Supreme Court with power to issue writs of certiorari. It has appellate jurisdiction only in all cases at law and in equity originating in circuit courts and of appeals from the circuit courts in cases arising before judges of the county courts in matters pertaining to their probate jurisdiction and in the management of the estates of infants and in cases of the conviction of relony in the criminal courts and in all criminal cases originating in the circuit courts. See section 5, art. 5, Const. Fla.

The case at bar is not within either of the above classifications.

It is apparent, therefore, that this court's appellate jurisdiction cannot be exercised in the present case, even though the statute seemingly undertakes to vest that power in the case at bar through the medium of a writ of certiorari, because the appellate jurisdiction of the Supreme Court cannot be enlarged by statute beyond constitutional limits by any attempt to extend that authority through the medium of a writ of certiorari. See American Ry. Express Co. v. Weatherford, 86 Fla. 626, 98 So. 820; Atlantic Coast Line Ry. Co. v. Florida Fine Fruit Co., 93 Fla. 161, 112 So. 66, 113 So. 384.

In the latter case, the Supreme Court, in an excellent opinion by Mr. Justice Terrell, now Chief Justice, elucidated this point. There is no need for another discussion.

Previously to that opinion, Mr. Justice Whitfield, speaking for the court in American Ry. Express Co. v. Weatherford, supra, and in American Ry. Express Co. v. Weatherford, 84 Fla. 264, 93 So. 740, also fully discussed the purpose of the constitutional provisions upon the subject of this court's appellate jurisdiction as well as the purpose of the Constitution in giving to the circuit courts 'final appellate jurisdiction' in all cases, civil and criminal, arising in the courts enumerated in section 11 of article 5 then existing under the Constitution of 1885.

In the later Weatherford Case, reported in the 86 Fla. 626, 98 So. 820, 821, it was held that that portion of section 3322, Rev. Gen. St. 1920, providing that, on a writ of certiorari issued to a judgment of the circuit court on an appeal from the civil court of record, this court should have the 'same power and authority in the case as if it has been carried by writ of error to the Supreme Court,' was in conflict with the purpose of the Constitution to give to circuit courts 'final appellate jurisdiction' in all cases arising in courts that are inferior to the circuit courts with certain exceptions. It was also held in that case that the usual final order on certiorari is to quash the writ or to quash the judgment reviewed on the writ, citing First National Bank v. Gibbs, 78 Fla. 118, 82 So 618. In that case the writ was directed to the circuit court which had reversed a...