Greater Miami Development Corp. v. Pender

• Citation: 142 Fla. 390,194 So. 867
• Parties: GREATER MIAMI DEVELOPMENT CORPORATION v. PENDER et al.
• Decision Date: 23 January 1940
• Court: United States State Supreme Court of Florida

194 So. 867

142 Fla. 390

GREATER MIAMI DEVELOPMENT CORPORATION v. PENDER et al.

Florida Supreme Court

January 23, 1940

Rehearing Denied April 12, 1940.

Certiorari to Circuit Court, Dade County; Arthur Gomez, Judge.

Proceeding between the Greater Miami Development Corporation and M Sewell Pender and another which involved municipal tax certificates. A temporary restraining order was granted for purpose of retaining jurisdiction over the tax certificates pending disposition of the cause on its merits and the Greater Miami Development Corporation brings certiorari. On motion to dissolve supersedeas order.

Petition for certiorari denied and motion to dissolve supersedeas granted with directions.

COUNSEL

Richard H. Hunt and George H. Salley, both of Miami for petitioner.

Clarence W. Nelson, of Miami, for respondents.

OPINION

TERRELL Chief Justice.

Petitioner applied to this Court for certiorari under Rule 34 to review an interlocutory decree of the Circuit Court of Dade County and for an order under Section Five of Article Five of the Constitution of Florida, to preserve the jurisdiction and to stay all proceedings in the Circuit Court pending disposition of the cause here.

The application for stay order was treated as an application for supersedeas and granted for the purpose of staying all proceedings in the Circuit Court until the petition for certiorari could be considered and disposed of. The cause comes on to be disposed of on the motion of respondents to dismiss the supersedeas order.

It is first contended that the supersedeas order and the petition for certiorari should be dismissed because they do not show that petitioner is minus an adequate remedy at law or stated otherwise an attempt is being made to use certiorari for appeal or writ of error which cannot be done.

Respondents misconceive the scope of certiorari. The common law writ of certiorari was an original writ issuing from chancery directed to an inferior court in the King's name commanding it to return the record of a cause pending before it so that the petitioner might have a review of the proceedings. Under the common law, the writ was limited to cases in which the inferior court was said to be exceeding its jurisdiction or was not proceeding according to the essential requirements of law. Such is the application of the common law writ as used in the Constitution of this State.

At common law, the writ of certiorari would lie only to review judicial or quasi judicial acts but its scope has been greatly extended by statute and judicial interpretation. It is now employed to review the decisions of inferior offices boards, and tribunals, and is employed by the Supreme Court of the United States to review decisions of the inferior Federal courts. It is now employed in this State to review orders of the Railroad Commission and other administrative boards. Its use has been further extended by Rule 34 of the rules of this Court to review all interlocutory appeals from the Circuit Courts.

In its common law aspect, certiorari is not available as a substitute for appeal or writ of error but as extended by Rule 34, it becomes a substitute for appeal from all interlocutory orders or decrees in chancery. Such appeals are by statute, Section 4961, Compiled General Laws of 1927, made a matter of right, the right in no sunse being affected by Rule 34; only the method of its exercise is changed. The reason for the change in method...