Frederick v. Rowe
| Decision Date | 19 April 1932 |
| Citation | 140 So. 915,105 Fla. 193 |
| Parties | FREDERICK, County Solicitor v. ROWE, Circuit Judge. |
| Court | Florida Supreme Court |
En Banc.
Petition for prohibition by Herbert B. Frederick, as County Solicitor of the Criminal Court of Record, Volusia County, against M G. Rowe, as Judge of the Seventh Judicial Circuit, of the State of Florida.
Writ of prohibition denied.
COUNSEL Herbert B. Frederick, of Daytona Beach, for petitioner.
Jones & Green, of De Land, for respondent.
William Hill was informed against, tried, and convicted of a felony in the criminal court of record for Volusia county. Judgment of conviction and sentence were entered against him, and he forthwith filed his sworn petition for writ of habeas corpus in the circuit court of Volusia county, alleging that he was illegally restrained by the sheriff of said county. The writ of habeas corpus was issued returnable before said court January 15, 1932. On the same date suggestion for prohibition was filed in this court by the petitioner and rule to show cause was issued returnable January 29, 1932. The cause now comes on to be heard on the issue made by the demurrer, plea and answer of the respondent to the rule to show cause.
Two questions are brought here for our determination, viz Should the proceeding in prohibition have been brought in the name of the state and does it lie to restrain further proceedings in the habeas corpus suit pending in the circuit court.
Whether or not the proceeding in prohibition should have been brought in the name of the state was considered by the decision of this court in Dickenson v. Parks 140 So. 459, filed March 29, 1932. True, we were not confronted in that case with the direct question presented here, though we held in effect that proceedings in prohibition in this state had reference always to the common-law writ. Under the common law, the writ was sued out in the name of the crown or the state, but our statute (section 3585, Revised General Statutes of 1920, section 5450, Compiled General Laws of 1927) seems to contemplate that any plaintiff or plaintiffs may file the suggestion for the writ, and that practice has been generally followed in this court. The rule appears to be general that, while the suggestion may proceed in the name of the state, the state is not a necessary party, and failure to do this is not fatal. Encyclopedia of Pleading and Practice, Vol. 8, par. 1, page 1134; Baldwin v. Cooley, 1 S. C. 256; Roswell v. Richardson, 21 N.M. 104, 152 P. 1137; State ex rel. St. Louis & K. R. Co. v. Hirzel, 137 Mo. 435, 37 S.W. 921, 38 S.W. 961; Davenport v. Sterling Lumber Co., 143 La. 671, 79 So. 215.
Will prohibition serve to restrain further proceeding in the habeas corpus suit now pending before the respondent in the circuit court of Volusia county?
Relator contends that, as to the habeas corpus suit, respondent is proceeding without or in excess of jurisdiction, and that, consequently, prohibition will lie to intercept further proceedings. Respondent counters by asserting jurisdiction to adjudicate the issue raised in the habeas corpus suit.
Pertinent to this question, section 11 of article 5 of the Constitution of Florida defines the jurisdiction of circuit judges as follows:
'The circuit courts and judges shall have power to issue writs of mandamus, injunction, quo warranto, certiorari, prohibiton, habeas corpus and all writs proper and necessary to the complete exercise of their jurisdiction.'
Section 5 of article 5 defines the jurisdiction of the Supreme Court as follows:
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... ... is not a necessary party." See, also, In re Fenton ... et al., 58 Misc. 303, 109 N.Y.S. 321; Frederick, ... County Solicitor, v. Rowe, Circuit Judge, 105 Fla. 193, ... 140 So. 915; Davenport v. Sterling Lumber Co., 143 ... La. 671, 79 So. 215; ... ...
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State ex rel. Gerstein v. Baker
...named in and affected in his official capacity by the terms of the order, we denied the motion, by a separate order. See Frederick v. Rowe, 105 Fla. 193, 140 So. 915; Cherry v. Heffernan, 132 Fla. 386, 182 So. 427, 428. No answer or return to the rule nisi was filed by the respondent. For t......
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State ex rel. Renaldi v. Sandstrom
...for new trial, motion in arrest of judgment, judgment on the verdict, commitment, or any other feature of the trial. Frederick v. Rowe, 1932, 105 Fla. 193, 140 So. 915. We do note, however, and nothing within the Janes decision or decisions cited therein indicates to the contrary, that the ......