Great American Ins. Co. of New York v. Peters

• Decision Date: 02 May 1932
• Citation: 105 Fla. 380,141 So. 322
• Parties: GREAT AMERICAN INS. CO. OF NEW YORK v. PETERS et al.
• Court: Florida Supreme Court

141 So. 322

105 Fla. 380

GREAT AMERICAN INS. CO. OF NEW YORK v. PETERS et al.

Florida Supreme Court

May 2, 1932

En Banc.

Certiorari to Circuit Court, Dade County; Paul D. Barns, Judge.

Action by Iona V. Peters, a married woman, by her next friend, W. I Peters, and another, against the Great American Insurance Company of New York, a corporation. A judgment of the civil court of record for plaintiff was affirmed by the circuit court, and defendant brings certiorari. On named plaintiff's motion to supersede the writ.

Motion denied, and proceeding stayed pending proof of service of the petition and writ on the other plaintiff.

COUNSEL O. D. Batchlor, of Miami, for petitioner,

L. J Cushman, of Miami, for respondents.

OPINION

BROWN J.

Iona V Peters, a married woman, by her next friend, sued the petitioner in the civil court of record for Dade county, Fla., and obtained a judgment against the petitioner in the sum of approximately $2,000. In the course of the proceedings the declaration was amended so as to add Laura F. Stieren, by her next friend, as a party plaintiff. After judgment had been rendered in favor of the plaintiffs, the petitioner sued out a writ of error to the circuit court in and for Dade county, which court affirmed the judgment of the civil court of record. The defendant, insurance company, then filed its petition in this court for a writ of certiorari to review the judgment of the circuit court, setting forth in said petition certain alleged reasons why the order of the circuit court affirming the judgment of the civil court of record should be quashed. The petition was granted and a writ of certiorari in the usual form was issued by this court on February 16, 1932. The writ is captioned in the name of the petitioner and the respondent, and is issued in the name of the state of Florida, addressed to Hon. E. B. Leatherman, clerk of the circuit court of the Eleventh judicial circuit of Florida in and for Dade county. The body of the writ reads as follows:

'For certain causes moved before the Justices of our Supreme Court, we command you that you, under the Seal of your said Court, the record and proceedings in a certain cause lately pending in your said Court wherein Great American Insurance Company of New York, a corporation, was Plaintiff in Error and Iona V. Peters, a married woman by her next friend, W. I. Peters nd Laura F. Stieren by her next friend Charles Stieren were Defendants in Error, with all things touching the same as fully and wholly as the same are before you now residing, to the Justices of our Supreme Court sitting in term at Tallahassee, Florida, on the 17th day of March, 1932, to send and certify, enclosed together with this Writ.

'Witness the Honorable Rivers Buford, Chief Justice of the Supreme Court and the Seal of the Supreme Court at Tallahassee, Florida, this 16th day of February, A. D. 1932.

'[Seal] G. T. Whitfield,

'Clerk Supreme Court of Florida.'

Before there had been any return made to the writ, said Iona V. Peters by her next friend appeared specially 'for the sole purpose of objecting to the jurisdiction of the court over her person and for moving the court to supersede the writ of certiorari for want of jurisdiction over her person,' for several alleged reasons, the more important of which will be hereinafter discussed.

The first contention of the movant is that the party or parties in whose favor the judgment was rendered by the circuit court, which is sought to be annulled upon certiorari, must be made parties to the writ, and must be summoned to appear before this court to be heard upon the matters to be determined, and must be properly served with process, unless it be waived by general appearance without such process.

It will be noted that the movant, Iona V. Peters, by next friend, is named as party respondent in the caption to the writ, and also named in that part of the body of the writ which describes the cause as it stood in the lower court, the record of which is ordered certified to this court. However, the writ is addressed to the clerk of the circuit court, and neither the writ, nor the order granting the writ, appears to require any service of process upon either of the parties in whose behalf the judgment was rendered in the court below, the quashing of which is sought in and by this proceeding. The petitioner has filed an affidavit in this court that a true copy of the petition was delivered to the attorney for the movant on February 17, 1932, and that a copy of the writ of certiorari was left at such attorney's office on February 27, 1932. However, this was not done in pursuance of any order from this court, and might not dispense with the necessity of service of legal process, if, as contended by movant, service of such process is required by law in order to give this court jurisdiction.

Counsel for the movant has cited to out attention the following quotation from 4 Encyc. of Pldg. & Prac. 183, 184: 'Persons who are parties to the record, or who are interested in maintaining the regularity of the proceedings of which a review is sought, should be made parties defendant. By making such persons parties the court is enabled to do ample and complete justice, and to render a judgment which will be binding on all parties concerned, and which will terminate the controversy.'

Several cases are cited in the notes in support of the foregoing proposition, and counsel has in his brief cited several additional cases, all from other jurisdictions. See, also, to like effect, 11 C.J. p. 142; Ferris on Extroardinary Legal Remedies, § 175; 4 Standard Encyc. of Procedure, 907.

This does not necessarily mean, however, that the writ of certiorari should be directed to the parties to the cause in the court below who are interested in maintaining the regularity and validity of the proceedings of which a review is sought. This is shown by the same works cited by counsel for movant. Thus in 4 Encyc. of Pl. & Pr. at page 176, it is said: 'Since the object of the writ of certiorari is to procure the transmission by an inferior tribunal of its record, or a copy thereof, to the court out of which the writ issues, for the purpose of enabling the latter court to inspect such record, the writ should be directed to the court, tribunal, board or officer which, in legal contemplation, is the custodian of such record.' See, also, a similar statement in 11 C.J. 166, where this language is added: 'But, where no command is made as to them, the writ is not invalidated by the insertion in the body thereof of the names of interested persons.' In this connection, it might be noted that there is authority for the practice of directing the writ to the clerk of the court where the court is a court of record. 4 Encyc. of Pl. & Pr. 177; 11 C.J. 167; Ferris on Extr. Legal Rem. § 177.

On this question of parties defendant in certiorari proceedings, and the party to whom the writ should be directed, Spelling on Extraordinary Remedies, in sections 1984 and 2001, has this to say:

'As a general rule, a writ of certiorari should be directed to the person or body having legal custody of the record to be certified. But it was held that where a judge, sitting at chambers, has erroneously issued and directed an order to be filed, as of a special term, a certiorari properly issues to the judge acting as an officer out of court, and not to the court of which he is a justice. And under a statute providing that actions removed from the probate to the district court by certiorari shall be tried de novo the proceedings in the district court are not collateral, and the decision in the probate court may be reviewed without that court having an opportunity to correct its errors. But while the officer or tribunal having custody of the record is often made a party defendant, it is not to be understood that he or it is always or even generally a necessary party. And where certiorari is prosecuted in aid of an ejectment suit, the present owner should be a party to it; otherwise he cannot be bound by the adjudication. And certiorari in aid of habeas corpus should be directed to the officer having the prisoner in custody, and not to the judge.'

Section 2001: 'The question of proper parties defendant, has been already considered; but the writ is not necessarily, and in all cases, served upon the real defendant. Usually, where a court of record or the judge thereof, in his official capacity, is the defendant, it may be addressed to and served upon the clerk. And an improper address, as to an officer individually instead of officially, as well as lack of service, is cured by making return or entering appearance. The matter of service and address depend largely upon statutory provisions of the various states with which the practitioner is presumed to familiarize himself.'

In this connection Crandall's Florida Common Law Practice, pp. 657, 659, 660, says:

'The application for the writ is usually made and heard ex parte, but the court or officer to whom the application is made may require notice to be given the adverse party. As the allowance of the common-law writ is never a matter of right (the only statutory certiorari in Florida is the one perviously discussed where the clerk of the circuit is authorized to issue the writ to a justice of the peace) the burden rests upon the applicant to convince the court that the writ should issue in the first instance. He should, therefore, present not only a carefully prepared petition, but also a good brief. * * *

'Like other writs that of certiorari should run in the name of the state of Florida, bear teste in the name of the clerk or judge issuing it and bear date when issued and be returnable at the next ensuing rule day of the court issuing...