Dade Realty Corp. v. Schoenthal

• Decision Date: 10 March 1942
• Parties: DADE REALTY CORPORATION v. SCHOENTHAL et al.
• Court: Florida Supreme Court

6 So.2d 845

149 Fla. 674

DADE REALTY CORPORATION v. SCHOENTHAL et al.

Florida Supreme Court

March 10, 1942

Patton & Kanner and Redfearn & Ferrell, all of Miami, for relator.

Harry Gordon, of Miami Beach, and J. M. Flowers, of Miami, for respondents.

TERRELL, Justice.

In a landlord and tenant or distress proceeding in the county judge's court of Dade County, relator recovered a judgment against respondents awarding it possession of described premises for non-payment of rent. A warrant of possession was issued directing the Sheriff to place relator in possession of the premises.

Respondents forthwith filed petition for certiorari in the Circuit Court on consideration of which, writ was issued directed to the County Judge commanding him to send up the record in the distress proceeding for the purpose of examination and correcting errors therein. A motion to dismiss the petition for certiorari was denied and the relator filed in this Court his suggestion for prohibition praying that the Circuit Court of Dade County and the Judges thereof be restrained from proceeding further by certiorari and that the stay order issued therein be set aside.

It is contended that the Circuit Court was without authority to issue the writ of certiorari because (1) respondents had ample remedy by appeal to review the judgment of the County Judge, (2) the Circuit Court was without jurisdiction of the subject matter and (3) relator is irreparably injured by the writ of certiorari and is without adequate legal remedy except by writ of prohibition.

In our view, there was no basis for the writ of certiorari and it should have been denied. Landlord and tenant or distress proceedings as provided by Section 5398 to 5406, Compiled General Laws of 1927, are summary in nature and were provided for the purpose of giving a landlord speedy relief where (1) the tenant defaults in payment of rent under his contract, or (2) where he stays on and refuses to vacate the premises after the expiration of his rental contract.

In the case at bar respondents defaulted in payment of rent on a hotel as their contract provided and the relator secured a judgment of eviction by distress proceedings in the manner provided by statute. The sole issue was whether or not the rent was in default. If it was, that was the end of the law and relator was entitled to his judgment. There was no question of due process, equal protection, or the violation of fundamental rights unless the rent was actually paid. If the rent were in default and the proceeding regular, the judgment was legal.

Section 5406 Compiled General Laws of 1927, provides for an immediate appeal of the distress judgment to the Circuit Court upon giving a bond to be approved by the County Judge in such amount as he may fix to indemnify the adverse party for all damages and costs...