Farnham v. Caldwell

• Decision Date: 19 January 1940
• Citation: 141 Fla. 416,193 So. 286
• Parties: FARNHAM et al. v. CALDWELL.
• Court: Florida Supreme Court

193 So. 286

141 Fla. 416

FARNHAM et al. v. CALDWELL.

Florida Supreme Court, Division B.

January 19, 1940

Certiorari to Circuit Court, Santa Rosa County; L. L. Fabisinski, Judge.

Suit between Hiram M. Farnham and others and M. F. Caldwell, Jr. To review a decree for the last-named party, the first-named party brings certiorari.

Writ quashed.

COUNSEL W. W. Flournoy, of De Funiak Springs, for petitioners.

John T Wigginton, of Milton, and Keen & Allen, J. Velma Keen, Wm. P Allen, and A. Frank O'Kelley, Jr., all of Tallahassee for respondent.

OPINION

PER CURIAM.

Certiorari is a common-law writ which issues in the sound judicial discretion of the court to an inferior court, not to take the place of a writ of error or an appeal, but to cause the entire record of the inferior court to be brought up by certified copy for inspection, in order that the superior court may 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. American Ry. Exp. Co. v. Weatherford, 84 Fla. 264 93 So. 740; State ex rel. Landis v. Simmons, 104 Fla. 487, 140 So. 187, 190; Malone v. Quincy, 66 Fla. 52, 62 So. 922, Ann.Cas.1916D, 208; State v. Live Oak, etc., R. Co., 70 Fla. 564, 70 So. 550; Great American Ins. Co. v. Peters, 105 Fla. 380. 141 So. 322. See Postal Telegraph-Cable Co. v. Broome, 99 Fla. 272, 126 So. 149; Seaboard Air Line R. Co. v. Ray, 52 Fla. 634, 42 So. 714, Des Rocher & Watkins Towing Co. v. Third Nat. Bank, 106 Fla. 466, 143 So. 768; First Nat. Bank v. Gibbs, 78 Fla. 118, 82 So. 618; Jacksonville, T. & K. W. Ry. Co. v. Boy, 34 Fla. 389, 16 So. 290; Hunt v. Jacksonville, 34 Fla. 504, 16 So. 398, 43 Am.St.Rep. 214; Rifas v. Gross, 106 Fla. 708, 143 So. 600; Dowling v. State, 98 Fla. 523, 124 So. 12.

'In this state the writ of certiorari is used to quash illegal judgments, not to assume and complete the adjudication of a cause.' First Nat. Bank v. Gibbs, 78 Fla. 118, 82 So. 618, 620, quoted in Rifas v. Gross, 106 Fla. 708, 143 So. 600.

Review by certiorari does not ordinarily extend to a consideration of the probative force of conflicting testimony ( Atlantic Coast Line R. Co. v. Florida Fine Fruit Co., 93 Fla. 161, 112 So. 66, 113 So. 384; Medlin-Peacock Buick Co. v. Broward, 101 Fla. 600, 135 So. 156), where there is ample, competent and legal evidence to sustain the judgment. American Ry. Exp. Co. v. Weatherford, 84 Fla. 264, 93 So. 740.

And the case will not be tried upon its merits by the court issuing the writ. Peaden v. State, 90 Fla. 84, 105 So. 142.

Upon a certiorari directed to the circuit court as an appellate court, the Supreme Court will not question the correctness of the judgment of the Circuit Court upon its merits. Benton v. State, 74 Fla. 30, 76 So. 341; Harrison v. Frink, 75 Fla. 22, 77 So. 663; American Ry. Exp. Co. v. Weatherford, 86 Fla. 626, 98 So. 820; Brinson v. Tharin, 99 Fla. 696, 127 So. 313, 316.

'The subject-matter of the suit or proceeding which it brings before the court are not here reinvestigated, tried, and determined upon the merits generally as upon appeal at law or writ of error. Basnet v. Jacksonville, 18 Fla. 523.' Brinson v. Tharin, 99 Fla. 696, 127 So. 313, 316.

In the case of Jacques v. Wellington Corp. 135 Fla. 167, 184 So. 766, this Court held that certiorari to review a judgment of the Circuit Court, which had been reviewed on writ of error to the Supreme Court and disposed of by an opinion filed, would be denied, since the issuance of a certiorari would be without effect.

While the testimony submitted to the chancellor in this case was conflicting, there was ample testimony and evidence to sustain the chancellor's findings of fact and the decree rendered thereon, and it does not appear from the record that the essential requirements of law were disregarded by the chancellor in arriving at and entering the final decree here sought to be quashed. The writ of certiorari must therefore be quashed.

Where the right of appeal exists, and a party has lost that right by failure to prosecute his appeal with due diligence certiorari will not lie. But there is an exception to the general rule that a writ of certiorari will not lie where there is an adequate remedy by appeal or writ of error, such exception being in cases where an...