First Nat. Bank v. Gibbs

• Citation: 78 Fla. 118,82 So. 618
• Parties: FIRST NAT. BANK OF GAINESVILLE v. GIBBS, Circuit Judge, et al.
• Decision Date: 14 July 1919
• Court: United States State Supreme Court of Florida

82 So. 618

78 Fla. 118

FIRST NAT. BANK OF GAINESVILLE v. GIBBS, Circuit Judge, et al.

Florida Supreme Court

July 14, 1919

Petition of the First National Bank of Gainesville for a writ of certiorari against George Couper Gibbs, Judge of the Circuit Court for the Fourth Judicial Circuit of Florida for Duval County, and others. Writ quashed.

Syllabus by the Court

SYLLABUS

The Supreme Court has power to review and quash, on the common-law writ of certiorari, the proceedings of inferior tribunals when they proceed in a cause without jurisdiction or when their procedure is essentially irregular and not according to the essential requirements of justice and law and no appeal or direct method of reviewing the proceedings exists.

The writ of certiorari to review the proceedings of an inferior court does not issue as a matter of right, but rests in the sound discretion of the court, and, when issued, will not serve the purpose of a writ of error or appeal with a bill of exceptions.

The office of the common-law writ of certiorari, when issued to review the proceedings of an inferior court, is to bring up for inspection the entire record of the proceedings of such court, in order that the superior court may determine therefrom whether the inferior court acted within its jurisdictional powers, or whether its procedure was essentially regular and in accordance with the requirements of law.

On writs of certiorari, the ultimate adjudication is to quash the judgment complained of, or to quash the writ of ceriorari.

In this state the writ of certiorari is used to quash illegal judgments, not to assume and complete the adjudication of a cause. Ordinarily the writ of certiorari may not be used to quash a judgment of an inferior court, unless such judgment is a final adjudication of the cause.

A judgment on writ of error reversing a judgment and remanding the cause for further proceedings in the lower court is not a final judgment.

COUNSEL Hampton & Hampton, of Gainesville, for petitioner.

Johnston & Garrett, of Kissimmee, for respondents.

OPINION

WHITFIELD J.

A judgment in assumpsit was rendered by the civil court of record for Duval county. On writ of error to the circuit court, the judgment was reversed and the cause 'returned to the civil court of record for further proceedings.' A writ of certiorari was applied for and issued by this court addressed to the circuit court. A motion is made to quash the writ of certiorari.

Pursuant to authority conferred by section 1, art. 5, as amended, and section 11, art. 5, of the Constitution, the Legislature, by chapter 6904, Acts of 1915, provided for civil courts of record in counties having 70,000 population; such courts to have jurisdiction in civil actions at law where the matter in controversy does not exceed $1,500, exclusive of interest and costs. Sections 12 and 13 of the act provide as follows:

'Sec 12. The circuit courts shall have appellate jurisdiction in all cases decided by the civil courts of record, in the same manner and with the same limitations as in writs of error from the circuit to the county court.

'Sec. 13. Where the circuit court has rendered a judgment in any case appealed from the civil court of record as provided by this act, 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 had 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 act.'

Under section 5, art. 5, of the Constitution, the Supreme Court has 'the power to issue writs of * * * certiorari.'

Section 1690, General Statutes 1906, is as follows:

'All proceedings to procure review by an appellate court of the proceedings of a lower court in cases at law shall be by writ of error, except in cases where certiorari or prohibition shall lie, or where it shall be otherwise expressly provided.'

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.

On certiorari the court issuing the writ considers only the face of the record of the inferior court. Certiorari will issue if the record shows such a state of facts as makes the judgment rendered a glaring and palpable injustice to the party against whom it is rendered.

A petition for a writ of certiorari to review the proceedings and judgment of a court should make it appear that an illegal proceeding appears by the face of the record complained of. State v. Live Oak, P. & G. R. Co., 70 Fla. 564, 70 So. 550; Seaboard Air Line R. Co. v. Ray, 52 Fla. 634, 42 So. 714.

'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. While 'a certiorari is appellate in its character, in the sense that it involves a limited review of the proceedings of an inferior jurisdiction, it is original in the sense that 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. Thus the Supreme Court of the United States speaks of such writs 'as writs to review the proceedings of inferior courts as a matter of original jurisdiction,' and showing errors of fact is only admissible to show want of jurisdiction or serious irregularity or illegality in procedure.' This is the language of Mr. Justice Westcott in the case of Basnet v. City of Jacksonville, 18 Fla. 523. As in that case, so in this, the writ was issued not as ancillary or auxiliary to our appellate jurisdiction, as it is when issued to supply a deficiency in the transcript of the record of a judgment from which an appeal is taken or to which a writ of error is sued out; nor is it issued to remove a case for trial here of which we have jurisdiction. The circuit court, not the Supreme Court, has, under the Constitution, final appellate jurisdiction of this case. The writ is a common-law writ of certiorari, upon which, as was said in the case above cited 'we neither affirm nor reverse a judgment, nor try the case upon its merits. We must either quash the proceeding of the judge of the circuit court, or quash the certiorari which brings it here.'

'Under the Constitution of this state, the supervisory power of this court on a certiorari to a circuit court as an appellate court, where the court of original jurisdiction had jurisdiction of the parties and subject-matter and the appellate court acquired jurisdiction according to the forms prescribed by law, is restricted to...