Palmer v. Johnson

• Decision Date: 04 April 1929
• Citation: 121 So. 466,97 Fla. 479
• Parties: PALMER v. JOHNSON et al.
• Court: Florida Supreme Court

121 So. 466

97 Fla. 479

PALMER v. JOHNSON et al.

Florida Supreme Court

April 4, 1929

En Banc.

Certiorari to Circuit Court, Hillsborough County; L. L. Parks, Judge.

Action between Thomas Palmer and J. C. Johnson and another copartners, trading as the J. C. Johnson Construction Company. An order of the Civil Court of Record was reversed by the circuit court, and Thomas Palmer brings certiorari. On motion to dismiss the writ of certiorari.

Writ dismissed.

Terrell C.J., and Ellis, J., dissenting.

Syllabus by the Court

SYLLABUS

Statute if intended to circumscribe Supreme Court's constitutional power of certiorari review of inferior tribunals, would be ineffectual (Laws 1925, Extra Sess., c 11357; Const. art. 5, § 5). If Laws 1925, Extra Sess., c. 11357, creating civil courts of record, vesting circuit courts with appellate jurisdiction and providing that petition for certiorari review in Supreme Court must be filed within 30 days after rendering of judgment by circuit court, was intended to circumscribe Supreme Court's power, under Const. art. 5, § 5, to review and quash, on commonlaw certiorari, proceedings of inferior tribunals, at least where such proceedings were had without jurisdiction and where no appeal or direct mode of reviewing such proceedings exist, it would be ineffectual.

If writ of error was defective, precluding review in circuit court, Supreme Court could entertain certiorari petition, though filed late, to quash circuit court's judgment (Const. art. 5, § 5; Laws 1925, Extra Sess., c. 11357). If writ of error to civil court of record was so fatally defective as to render it ineffectual as a means of invoking circuit court's appellate jurisdiction, the Supreme Court could entertain petition for certiorari under Const. art. 5, § 5, and quash judgment of circuit court in spite of fact that petition for certiorari was not filed within 30 days from rendition of such judgment, as required by Laws 1925, Extra Sess., c. 11357.

That writ of error returnable to circuit court was tested in name of circuit court judges held 'amendable defect' not defeating jurisdiction (Comp. Gen. Laws 1927, § 4618; Laws 1927, c. 11890, § 2). That writ of error of, and returnable to, circuit court was tested in name of two judges of circuit court, instead of in name of Chief Justice of Supreme Court, as required by Rev. Gen. St. 1920, § 2908, now Comp. Gen. Laws 1927, § 4618, did not deprive circuit court of jurisdiction; defect being amendable under Laws 1927, c. 11890, § 2.

COUNSEL

W. B. Dickenson and Paul Lake, both of Tampa, for petitioner.

Jordan & Hill, of Tampa, for respondents.

OPINION

BROWN J.

Motion is made by the respondents to dismiss the writ of certiorari heretofore issued by this court upon the ground that the petition for said writ was not filed within 30 days after the rendition of the judgment of the circuit court for Hillsborough county, reversing the order of the civil court of record of said county, which judgment of reversal was sought to be reviewed in this court by way of certiorari.

Chapter 11357 of the Laws of 1925, Extra Sess., the act creating the civil court of record for Hillsborough county, vests the circuit court with appellate jurisdiction as to all cases decided by the court so created. It further provides, as to such appellate judgments, that: 'It shall be competent for the Supreme Court to require by certiorari or otherwise upon the 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 had 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.'

It is doubtful if it was the intention of this provision of the act to circumscribe the power to issue writs of certiorari which this court already possessed under section 5 of article 5 of the Constitution, to review and quash, on common-law certiorari, the proceedings of inferior tribunals, at least where such proceedings were had without jurisdiction and where no appeal or direct mode of reviewing the proceedings exists; but if such was the intent, it would be ineffectual. See J. T. & K. W. Ry. Co. v. Boy, 34 Fla. 389, 16 So. 290; Harrison v. Frink, 75 Fla. 22, 77 So. 663; First National Bank v. Gibbs, 78 Fla. 118, 82 So. 618; Halliday v. Jacksonville, etc., Road Co., 6 Fla. 304. It has been held in other jurisdictions that, though the writ be denied by a statute providing for another mode of review, yet if the inferior tribunal acts without jurisdiction the writ will still lie. 4 Encyc. Pledg. & Prac. 38, and cases cited. It is not necessary for us here to decide other features of the matter, but if, as is contended by the petitioner, the writ of error in this case was so fatally defective as to render it ineffectual as a means of invoking the appellate jurisdiction of the circuit court, this court could entertain the petition for certiorari and quash the judgment of the circuit court, in spite of the fact that the petition was not filed within 30 days from the rendition of such judgment. We will therefore proceed to consider this contention, which petitioner correctly admits in his brief to be the controlling question raised by the petition.

The point thus made is that the writ of error is tested in the names of the two judges of the circuit court instead of in the name of the Chief Justice of the Supreme Court, as required by section 2908, Rev. Gen. Stats., now section 4618 Comp. Gen. Laws of Florida. The writ of error is not otherwise objected to. Indeed, it appears in other respects to be regular in form, as does also the praecipe for the writ. It shows that it is the writ of the circuit court, and is expressly made returnable to 'the Circuit Court of the Thirteenth Judicial Circuit,' the court...