Des Rocher & Watkins Towing Co. v. Third Nat. Bank

• Decision Date: 23 August 1932
• Citation: 143 So. 768,106 Fla. 466
• Parties: DES ROCHER & WATKINS TOWING CO. v. THIRD NAT. BANK OF MIAMI.
• Court: Florida Supreme Court

143 So. 768

106 Fla. 466

DES ROCHER & WATKINS TOWING CO. v. THIRD NAT. BANK OF MIAMI.

Florida Supreme Court

August 23, 1932

Rehearing Denied Oct. 25, 1932.

Commissioners' Decision.

Certiorari to Circuit Court, Dade County; Jefferson B. Browne, Judge.

Original proceedings by the Des Rocher & Watkins Towing Company opposed by the Third National Bank of Miami, Florida, to review a judgment of the circuit court affirming a judgment of the civil court of record in favor of respondent. On motion to quash the writ.

Motion granted.

COUNSEL Stuart Mackenzie, of Miami, for petitioner.

Shipp Evans & Kline, of Miami, for respondent.

OPINION

DAVIS C.

This cause is before us upon motion to quash a writ of certiorari heretofore issued out of this court and directed to the circuit court of Dade county for the purpose of reviewing the judgment of that court in affirming a judgment of the civil court of record in and for said county.

The mover bases the motion upon the grounds that it affirmatively appears from the record that the writ was improvidently issued, that it appears from the application for the writ that the inferior court had not exceeded its jurisdiction that the circuit court proceeded according to the essential requirements of law, that petitioner is seeking to make the writ serve the purpose of a writ of error, that petitioner seeks to have reviewed rulings made during the progress of the trial on questions of law and seeks to inject questions of law and fact not raised by the pleadings in the cause, and that it was not made to appear that the inferior court did not proceed according to the essential requirements of law.

The plaintiff sued on the common counts and two special counts numbered 6 and 7, respectively. In the sixth count, it was alleged in substance that in consideration that the plaintiff would open an account with Kendall Quarry & Construction Company, and would honor its checks and would otherwise advance and pay money to or for it on its behalf, the plaintiff promised to be responsible for any balance which any time thereafter might be due the plaintiff by the said Kendall Quarry & Construction Company; that the plaintiff honored checks of said company and otherwise advanced and paid money to and for it; that there was a balance due the plaintiff and the same had not been paid.

The seventh count set up a contract of guaranty, and alleged that, relying upon the contract, the plaintiff had advanced large sums of money to the Kendall Quarry & Construction Company which had not been repaid and that the defendant (petitioner here) had breached its contract.

It seems that the Des Rocher & Watkins Towing Company had a contract to do certain work for the United States government, and that they in turn contracted with the Kendall Quarry & Construction Company for the work to be done by the latter company. At the trial of the cause, the defendant offered in evidence the said two contracts, and also a statement of indebtedness made to the Des Rocher & Watkins Towing Company by the Kendall Quarry & Construction Company and propounded certain interrogatories relating to the same. The trial court sustained objections to the admission of the contracts and the said statement respectively, and also sustained objections to certain questions propounded to witnesses about matters ostensibly germane to such contracts, and it is upon such rulings and the affirmance of same by the circuit court that the petitioner bases its contention that the circuit court did not proceed according to the essential requirements of law.

The common-law writ of certiorari cannot be made to serve the purpose of an appellate proceeding in the nature of a writ of error with a bill of exceptions. J., T. & K. W. Ry. Co. v. Boy, 34 Fla. 389, 16 So. 290; First Nat'l Bank of Gainesville v. Gibbs, 78 Fla. 118, 82 So. 618; Brinson v. Tharin, 99 Fla. 696, 127 So. 313.

The particular function of the writ when issued by this court is to cause the entire record of the inferior court to which it is directed to be brought here by certified copy for inspection, in order for this court to determine from the face of the record whether the inferior court has exceeded its jurisdiction, or has not proceeded according to the essential requirements of the law in cases where no direct appellate proceedings are provided by law. S. A. L. Ry. v. Ray, 52 Fla. 634, 42 So. 714; State v. L. O., P. & G. R. Co., 70 Fla. 564, 70 So. 550.

We have said here that 'a review may include substantial errors of procedure that were calculated to materially injure the complaining party, though it does not ordinarily extend to a consideration of the probative force of conflicting testimony, where there is ample, competent, and legal evidence to sustain the judgment. But in causes originating in the civil courts of record and referred to in section 3322, Revised General Statutes 1920, where the probative force of the evidence affects the jurisdiction of the court, or where it is so manifestly contrary to the finding that is made on it as to show a palpable abuse of the power to determine the controverted facts on the evidence, or where the finding clearly indicates that the evidence was not duly considered, or an erroneous rule of law was observed in making the finding, or where there was serious misconduct involved in the finding, and material injury resulted to the petitioner therefrom, the court may, in the exercise of its sound discretion, consider such matters and take appropriate action thereon in order that the law and justice may prevail.' American Ry. Express Co. v. Weatherford, 84 Fla. 264, 93 So. 740, 742. See Ulsch v. Mountain City Mill Co. (Fla.) 138 So. 483, See, also, Haile v. Bullock, 83 Fla. 538, 91 So. 683; Am. Ry. Ex. Co. v. Weatherford, 86 Fla. 626, 98 So. 820; Brinson v. Tharin, 99 Fla. 696, 127 So. 313. See Edwards Case (Fla.) 139 So. 582, decided present term.

We have also held here that where there is an independent and unconditional promise by one to pay another's debt, made for a valuable consideration, which is subsequently paid or executed by the promisee, and is of direct pecuniary value to the promisor, the transaction is not within the statute (see section 5779, C. G. L. Fla. 1927) and the promisor's liability is fixed by principal debtor's failure to pay at maturity (Harvey v. Bank of Carter Hill, 83 Fla. 55, 90 So. 699); that if one, to strengthen the credit of a third person, agrees with a merchant to be responsible for goods to be sold in the future by him to such third person, and the merchant accepts the agreement, and acts upon it by selling goods, the agreement is founded on a valid consideration; and that one consideration is sufficient for both the principal and collateral contract and there need not be any consideration than that moving between the guarantee and the principal obligor under the principal contract. Ferst v. Blackwell, 39 Fla. 621, 22 So. 892. See, also, 28 C.J. 97.

In the seventh count of the declaration it is alleged that the defendant agreed to pay to plaintiff 'all moneys due or to become due to the Kendall Quarry & Construction Company for work done by the said company for the defendant under the contract.'

In actions against a guarantor upon a contract of guaranty, as in other civil actions, only such matters can be considered as are put in issue by the pleadings. 28 C.J. 1022; Brevard County Bldg. & L. Ass'n v. Sumrall, 101 Fla. 1189, 133 So. 888; W. B. Harbeson Lbr. Co. v. Anderson (Fla.) 136 So. 557.

The defendant pleaded payment...