State Ex Rel. Grodin v. Barns

• Decision Date: 21 May 1935
• Citation: 119 Fla. 405,161 So. 568
• Parties: STATE ex rel. GRODIN v. BARNS et al.
• Court: Florida Supreme Court

161 So. 568

119 Fla. 405

STATE ex rel. GRODIN v. BARNS et al.

Florida Supreme Court

May 21, 1935

En Banc.

Original proceeding by the State, on the relation of S. M. Grodin, for a writ of mandamus to be directed to Paul D. Barns and others, as Judges of the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, and another, to require such Judges to vacate judgment of reversal entered by them in a cause and subsequent order reaffirming such judgment, to recall the mandate, and to enter a judgment of affirmance. On respondents' motion to quash the alternative writ.

Motion granted.

COUNSEL W. Clinton Green, Patterson, Blackwell &amp Knight, and Daniel Sepler, all of Miami, for petitioner.

Shutts & Bowen, L. S. Bonsteel, and Joseph F. McPherson, all of Miami, for respondents.

OPINION

ELLIS Presiding Justice.

S. M Grodin obtained judgment against Railways Express Agency Inc., a corporation, in the civil court of record for Dade county on February 15, 1933, in the sum of $2,500. A few days later the plaintiff entered a remittitur in the sum of $212.70, thereby reducing the judgment to $2,287.30.

The Railway Express Agency took a writ of error from the circuit court for Dade county on the 27th day of the same month. The writ was returnable to April 6, 1933.

The circuit court, in an opinion by Hon. Paul D Barns, in which two other circuit judges of the circuit concurred, reversed the judgment of the civil court of record. The judgment was 'filed' and recorded on January 5, 1934, eight months and twenty-nine days after the return day of the writ of error. Immediately following the signature of Hon. Paul D. Barns to the written opinion of the court appears the symbol '9/18/33,' which probably means September 18, 1933, which indicates the date when the cause was 'determined,' although not when it was heard and considered.

On January 15, 1934, Grodin, by his counsel, interposed a motion or petition for a rehearing. That petition contained fifteen grounds all of which related to the pleadings and the evidence in the case. Not one attacked the jurisdiction of the circuit court to hear, consider, and determine the case after a period of five months had elapsed from the return day of the writ of error; the statute, chapter 15666, Laws 1931, Ex. Sess., requiring the circuit court to make final disposition of the case within that time.

The motion for rehearing was denied, and the circuit judges reaffirmed the judgment entered. That order recited that the judgment was entered January 5, 1934, which, as stated, was eight months and twenty-nine days after the return day of the writ of error.

On October 20, 1934, about four months after the order reaffirming the judgment, counsel in behalf of Grodin moved the circuit court to vacate its judgment of reversal and its subsequent order reaffirming that judgment upon the ground that the judgment of reversal was entered in violation of chapter 15666, supra, because the court did not determine the cause within five months after the return day of the writ of error and there was no certificate of absence of one or more of the judges of the circuit court or that during that period any one or more of them were incapacitated to act. The motion urged that in such circumstances under the provisions of chapter 15666, supra, the judgment of the civil court of record stood automatically affirmed.

Approximately ten days thereafter the judges of the circuit court entered an order denying the motion.

We will quote at this point the reason given by the judges in their written order denying the motion why they took such action. Such reason as given is as follows:

'The Court, being now fully advised in the premises, is of the opinion, and so holds, that the Act of the Legislature in question, wherein it is provided, among other things, that causes lodging in this Court upon writs of error from final judgments of the Civil Court of Record, shall be heard, considered and determined within five months from the return date of said appeals, was, and is, an unwarranted and unconstitutional attempt on the part of the Legislature to interfere with the inherent power of this Court, in an orderly manner and through due process, to properly hear, consider and determine all causes presented on appeal, so that equal opportunity for the intelligent administration of justice, within the scope of its appellate jurisdiction, might obtain.'

That order was signed by three of the circuit judges, Hon. Atkinson, Thompson, and Trammell. Hon. Paul D. Banns filed a concurring opinion in the following words:

'The Constitution of Florida provides: 'The powers of the government of the State of Florida, shall be divided into three departments; Legislative, Executive and Judicial; and no person properly belonging to one of the departments shall exercise any powers appertaining to either of the others, except in cases expressly provided for by this Constitution.' Article II, Const. of Fla.

'Which provision of the Constitution is an express exclusion of each department from exercising the function conferred upon the other, and as has been said, 'during the process of legislation in any mode the work of the law-makers is not subject to judicial arrest or control nor open to judicial inquiry' and it is in the province of the courts to determine what is the law upon existing cases and the legislature is without power to direct the affirmance, reversal or modification of any judgment, decree or order of any kind, just and to the same extent that the courts do not have the power to interfere with legislation. A legislature can fix the laws for the future and it is the function of the courts to declare what is the law applicable to the part.'

On February 15, 1935, a petition was filed in behalf of Mr. Grodin in this court for an alternative writ of mandamus to be directed to the four judges of the circuit court for the Eleventh circuit and to the Railway Express Agency to require the judges to vacate the judgment of reversal entered by them in the case on January 5, 1934, and the subsequent order reaffirming that judgment, to recall the mandate, and to enter a judgment of affirmance; that is to say, to make the 'statutory affirmance a matter of rocord.'

The alternative writ of mandamus was issued February 25, 1935, and the respondents, on March 18th following, moved to quash the alternative writ. The grounds of the motion are that chapter 15666, Acts of 1931, Ex. Sess., does not control or regulate the procedure upon the determination or disposal of the writ of error to the civil court of record; that the act is contrary to the Constitution; that it violates article 3, § 16, of the Constitution; that sections 8 and 10 of the act are contrary to and in violation of article 2, also section 20 of article 3, section 1 and 11 of article 5, of section 4 of the Declaration of Rights, and 'sections 8 and 10 of chapter 15666, Acts of 1931, Ex. Sess., of the State of Florida, and each of them constitute an unwarranted and unconstitutional attempt on the part of the Legislature to interfere with the inherent power of the Circuit Court of the Eleventh Judicial Circuit of Florida, in and for Dade County, to hear, consider and determine in an orderly manner and by due process, all causes presented on writs of error to the Civil Court of Record, so that equal opportunity for the intelligent administration of justice within the scope of its appellate jurisdiction might obtain.'

The motion also urges that no legal duty is shown on the part of respondents to comply with the terms of the alternative writ; that it requires nothing of the respondent Railway Express Agency; that the alternative writ affirmatively shows that the judges have fully performed and discharged the judicial functions devolving upon them in connection with the writ of error mentioned; that a peremptory writ would unlawfully control the discretion of the respondent judges; and that they have exercised the discretion vested in them under the Constitution of the state of Florida and are not subject to mandamus in this matter.

The question of the validity of sections 8 and 10 of chapter 15666, supra, in so far as those sections require the circuit court to finally hear, consider, and determine all causes brought before it on writ of error within five months after the return day of such writ, is presented. Section 8 of the act provides that, in case no determination shall be entered of record in any such cause in the circuit court within said period, 'the judgment of the Civil Court of Record therein sought to be reviewed shall stand automatically affirmed, unless it be made to appear by the certificate of one of the judges,' where there are more than one judge of the circuit court, that one or more of said judges have been absent from 'Dade County,' or incapacitated to act during the five months period.

Section 10 of the act provides that it shall be the duty of the circuit courts to reverse or affirm the judgment of the civil court of record sought to be reviewed as provided for in the act, or to give such judgment in the cause as the civil court of record ought to have given, and the party to any such cause against whom the judgment of the appellate court may be given shall have ten days within which to file a petition for a rehearing, if he desires to do so. The section directs the circuit court to consider the petition and to 'pass upon the same' at or before the next regular 'appellate term' after such petition shall have been filed if ten days intervene 'between such filing' and said next 'Appellate Term, or the said petition shall be granted then said cause shall be re-heard and final determination entered therein at or before the...