Mapoles v. Wilson, C-17

• Decision Date: 21 June 1960
• Docket Number: No. C-17,C-17
• Citation: 122 So.2d 249
• Parties: Clayton MAPOLES and Ben Henry Pooley, Petitioners, v. J. C. WILSON, Respondent.
• Court: Florida District Court of Appeals

Page 249

122 So.2d 249

Clayton MAPOLES and Ben Henry Pooley, Petitioners, v. J. C. WILSON, Respondent.

No. C-17.

District Court of Appeal of Florida, First District.

June 21, 1960.

Rehearing Denied July 13, 1960.

A. L. Johnson, Milton, for petitioners.

Coe & Coe, Pensacola, for respondent.

STURGIS, Judge.

This cause comes before this court on a petition of the defendants in an action for libel, who seek by way of certiorari to have reviewed an order of the trial court denying their motion to dismiss the complaint, based on Section 46.01, Florida Statutes, F.S.A., relating to venue in actions against corporations.

The action was commenced in Escambia County against the defendant-petitioners, who are admittedly residents of and own and operate a radio station that is located in Santa Rosa County, from which the alleged defamatory statements were broadcast.

As in Fort v. Fort, Fla.App.1958, 104 So.2d 69, we are immediately confronted with the question of whether this court has jurisdiction to review by certiorari the interlocutory order under assault. In the Fort case we adhered to the fundamental rule that the common-law writ of certiorari lies only in those cases in which it clearly appears that there is no other full, adequate and complete remedy available to the petitioner. The reference there was to the writ as afforded under Article V, § 5(3), Const. of Fla., F.S.A. The reference also applied to F.S. 59.45, F.S.A., which statute permits an appeal improvidently taken to be treated as a petition for writ of certiorari but does not authorize certiorari improvidently applied for to be treated as an appeal. Bartow Growers Processing Corp. v. Florida Growers Processing Co-op., Fla.1954, 71 So.2d 165. Although the decision in the Fort case involved a post-decretal order, the same principles of law are applicable where certiorari is invoked to review an interlocutory order in an action at common law relating to venue as here involved.

The instant petition for writ of certiorari asserts that it is founded on art. V, § 5(3), Constitution of Florida, ¹ and Rule 4.5, subd. c, Florida Appellate Rules, 31 F.S.A. While that rule relates to certiorari, it does not purport to define the legal basis for the writ. The power of this court to issue the common-law writ of certiorari derives from the last sentence of the cited constitutional provision, but that power is circumscribed by the above stated rule governing the court in issuing the writ.

However, the prohibition against the assumption by this court of jurisdiction in those instances where certiorari instead of interlocutory appeal is improvidently relied upon as a vehicle for review is more directly found in the limitations of Rule 4.2, Florida Appellate Rules, as promulgated pursuant to the first two paragraphs of the cited subsection of the constitution. Footnote 1. It will be noted therefrom that appeals to the district courts of appeal lie, 'as a matter of right', from final orders or decrees emanating from certain specified courts in certain limited classes of litigation, and 'from all final judgments or decrees except those from which appeals may be taken direct to the supreme court or to a circuit court,' subject to this exception: 'The supreme court * * * may provide for review by such courts of interlocutory orders or decrees in matters reviewable by the district courts of appeal.' Acting upon that specific and limited grant of power, the supreme court promulgated Rule 4.2, Florida Appellate Rules, authorizing interlocutory appeals in limited areas and prescribing the...