Merchants' Nat. Bank v. Grunthal

• Citation: 39 Fla. 388,22 So. 685
• Court: Florida Supreme Court
• Decision Date: 02 February 1897
• Parties: MERCHANTS' NAT. BANK OF JACKSONVILLE v. GRUNTHAL (two cases).

22 So. 685

39 Fla. 388

MERCHANTS' NAT. BANK OF JACKSONVILLE v. GRUNTHAL (two cases).

Florida Supreme Court

February 2, 1897

Application for certiorari. Denied.

For former opinion, see 20 So. 809.

Syllabus by the Court

SYLLABUS

1. The appellate court, equally with suitors, is bound by its rules and they must be construed as statutes would be construed.

2. Ordinarily a writ of certiorari to amend defects in records will not be awarded after the dismissal of a cause.

3. A second application for the rehearing of a cause in the appellate court by the same party, and upon the same grounds as a former application that has been considered and denied is not permissible, and cannot properly be entertained.

4. When the mandate of the appellate court has been regularly issued and sent to and filed in the court whose judgment it has reviewed, such appellate court has no further jurisdiction over the case, to grant a rehearing or other relief therein.

5. An appellate court may, sua motu, award a certiorari to inform its conscience, for the purpose of affirming a judgment, but never to reverse it or make error. Where a reversal is sought, the application for certiorari to perfect a record must come from the party seeking reversal, and must be supported by affidavit of diminution in the record.

6. It is incumbent on a party, when he assigns errors, to see that the record is in the condition in which he is entitled to have it. If he proceeds upon an imperfect transcript, and the judgment of the court is against him, he cannot, as a matter of right, claim a certiorari to the inferior tribunal.

7. Suggestions of diminution in records, and applications thereon for certiorari to supply the defects, must be seasonably made, and in conformity to the rules of practice in such cases; otherwise they will be denied.

COUNSEL Bisbee & Rinehart, for petitioner.

OPINION

TAYLOR C.J.

On motions of the defendant in error in these two causes, this court, by its judgment and opinion filed on October 13th during the last term, dismissed the writs of error therein upon the ground that all of the errors assigned were predicated upon the original affidavits for attachment filed in said causes, and upon the traverse affidavits filed therein by the defendant below, and that the transcripts of the record filed here did not so certify or exhibit such affidavits as that they could be recognized or considered by the court; that, as such affidavits constituted a part of the record proper in the cause, they could be authoritatively evidenced to this court only by the certificate of the clerk of the court below, who was the custodian of them, and that, as they were exhibited in such transcripts only as part of bills of exception certified by the judge of the court below, this court could not properly recognize or consider them; and therefore, because the records filed here did not exhibit any of the matters assigned as error in such manner as that this court was authorized to recognize or consider them, the causes were dismissed. Prior to the presentation of these motions by the defendant in error for the dismissal of said causes, the plaintiff in error had filed here an abstract of the record; and the defendant in error had also filed a counter statement, or exceptions, questioning the correctness of such abstract, in conformity to rule 20 of this court. In the counter statement or exceptions filed by the defendant in error to the abstracts filed by the plaintiff in error the defects and omissions in the record that caused the dismissals were expressly pointed out and disclosed to the plaintiff in error, and they were reiterated in, and made the basis of, the defendant's motions to dismiss the writs of error. Notwithstanding this, however, the plaintiff in error contested the motions to dismiss, without any effort, under the rule in such cases, to suggest a diminution in the records, or to supply the palpable and fatal defects and omissions therein. The only semblance of an application for an amendment of the records up to the time of the judgment of the court dismissing the causes was the following, contained in the briefs of the plaintiff in error in opposition to the motions to dismiss, viz.: 'If, therefore, the first part of this motion to strike out the bill of exceptions should prevail, leave should be granted to the plaintiff in error to bring into the record, by motion for writ of certiorari, the affidavit of the plaintiff upon which the writ of attachment issued, the traverse affidavit of the defendant, and the plaintiff's motion to strike the same, and his demurrer thereto, which would establish, just as completely as the bill of exceptions establishes, each error assigned and relied upon in this court.' This passing suggestion in the brief of counsel could not, of course, be considered or regarded as a suggestion of diminution in the record, or as an application for any correction thereof, when the rules of practice for the conduct of causes in this court, in force since June, A. D. 1873, require that all applications suggesting diminution in records, and for writs of certiorari to supply omissions therein, shall be predicated upon an affidavit setting forth the substance of the paper or record omitted and to be returned, and that it was at the time of the trial, and still remains, on file or of record in the court below, and that the affiant was not aware, and could not, in the exercise of due diligence, have informed himself, of the defect in the record so as to have had it made complete before the filing thereof in this court, and that the application is not made for delay. Rule 7, S.Ct. Rules, adopted April term, A. D. 1873; Rule 15, S.Ct. Rules, adopted June term, A. D. 1895, 18 South. vii. The last-mentioned rule limits the time within which suggestions of diminution in records can be made, by prohibiting their being made after the abstract or statement of the cause has been agreed upon by the parties, or after the opposing statement, in case of disagreement, has been filed, without the consent of both parties. No suggestion of diminution in the record having been made in accordance with the rules prior to the filing by the defendant in error of his opposing statement to the abstract of record filed by the plaintiff in error, nor prior to the hearing of the motions to dismiss the causes because of the defects in the record, and no consent of parties being presented that any such suggestion should then be made, the court was bound by the rule to dismiss the causes in response to the motions made. Subsequent to the dismissals of said two causes, on October 29, 1896, the plaintiff in error filed here motions to reinstate the cases upon the docket, and for leave to file a motion suggesting diminutions in the records therein, and for a certiorari to bring up a corrected record. These applications, for the first time, were accompanied by the affidavits upon which the rules require all such applications to be predicated. These applications were denied by the court on December 1, 1896, without any written opinion, but for the reasons--First, that the court could not, under rule 15 of this court, permit any suggestion of diminution in records to be made after an opposing statement to the abstract of record of the plaintiff in error had been filed by the defendant in error; and, second, because, even without such rule, the law is generally well settled that a writ of certiorari to amend defects in records will not be awarded after the dismissal of a cause. Railway Co. v. Scott, 78 Tex. 360, 14 S.W. 791; Stanaford v. Parker (Ky., 1891) 15 S.W. 784; Id., 16 S.W. 268; 2 Enc. Pl. & Prac. 308.

On December 11, 1896, after the denial of the applications for rehearing and reinstatement of said causes, they were remitted to the court below by mandates of this court. Now on December 30, 1896, after the denial of the former application for rehearing and reinstatement of said causes, and for leave to suggest diminution in the records therein, and for certiorari to supplement such records, the plaintiff in error makes its second application in said causes for recall of the mandates therein, and for reinstatement of said causes, and for certiorari to supply the defective records therein, upon the following grounds: 'First. Be...