Harrison v. Frink

• Decision Date: 12 January 1918
• Citation: 77 So. 663,75 Fla. 22
• Parties: HARRISON v. FRINK.
• Court: Florida Supreme Court

77 So. 663

75 Fla. 22

HARRISON v. FRINK.

Florida Supreme Court

January 12, 1918

Application for writ of certiorari by J. S. Harrison against Carroll H Frink. Writ denied.

Syllabus by the Court

SYLLABUS

Where an order made by a civil court of record granting a new trial on the evidence is affirmed by the circuit court on writ of error, and such order does not appear to be erroneous, a writ of certiorari will not be granted by this court to review the affirmance of such order.

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.

On certiorari the court issuing the writ considers only the face of the record of the inferior court, and matters in pais are not within the purview of the writ.

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.

COUNSEL John L. Doggett, Henry C. Clark, and Wm. K Jackson, all of Jacksonville, for petitioner.

OPINION

WHITFIELD J.

By petition it is, in effect, alleged that in an action of assumpsit brought by Carroll H. Frink against J. S. Harrison in the civil court of record for Duval county, Fla., a verdict was rendered for the defendant; that a motion for new trial was granted and on writ of error taken under the statute the order granting a new trial was affirmed; that the granting of a new trial is 'an error of law.' It is prayed 'that a writ of certiorari, or such other writ as to this court may seem most appropriate, be issued by this court, requiring the said case in said circuit court to be certified to this Supreme Court for its review and determination, with the same power and authority in the case as if it had been car by writ of error to the Supreme Court.'

It appears that the trial court granted a new trial on the theory that the evidence showed an account stated which was not impeached for 'fraud, mistake, or error.' Daytona Bridge Co. v. Bond, 47 Fla. 136, 36 So. 445.

The appellate jurisdiction of the Supreme Court and of the circuit courts of the state is fixed by sections 5 and 11 of article 5 of the state Constitution, as follows:

'The Supreme Court shall have appellate jurisdiction in all cases at law and in equity originating in circuit courts, and of appeals from the circuit courts in cases arising before judges of the county courts in matters pertaining to their probate jurisdiction and in the management of the estates of infants, and in cases of conviction of felony in the criminal courts, and in all criminal cases originating in the circuit courts. The court shall have the power to issue writs of mandamus, certiorari, prohibition, quo warranto, habeas corpus, and also all writs necessary or proper to the complete exercise of its jurisdiction.' Section 5.

'The circuit courts * * * shall have final appellate jurisdiction in all civil and criminal cases arising in the county court, or before the county judge, of all misdemeanors tried in criminal courts, or judgements or sentences of any mayor's courts, and of all cases arising before justices of the peace in counties in which there is no county court; and supervision and appellate jurisdiction of matters arising before county judges pertaining to their probate jurisdiction, or to the estates and interests of minors, and of such other matters as the Legislature may provide. The circuit courts and judges shall have power to issue writs of mandamus, injunction, quo warranto, certiorari, prohibition, habeas corpus and all writs proper and necessary to the complete exercise of their jurisdiction.' Section 11.

Section 1 of article 5 as amended in 1914, provides that the judicial power of the state shall be vested in a Supreme Court, circuit courts, criminal courts, county courts, county judges and justices of the peace and such other courts or commissions as the Legislature may from time to time ordain and establish. Under this latter organic provision the Legislature enacted chapter 6904, Acts of 1915, establishing civil courts of record in counties having a population of more than 70,000, and 'prescribing the jurisdiction of the Supreme Court and circuit courts in relation to civil courts of record.' This statute contains the following provisions:

'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.' Section 12.

'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 has 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.' Section 13.

In Basnet v. City of Jacksonville, 18 Fla. 523, this court said:

'A certiorari is appellate in its character in the sense that it involves a limited review...