State Ex Rel. Mccallum v. Smith

• Decision Date: 21 November 1893
• Parties: STATE ex rel. McCALLUM et al. v. SMITH, Justice of the Peace.
• Court: Florida Supreme Court

14 So. 43

32 Fla. 476

STATE ex rel. McCALLUM et al. v. SMITH, Justice of the Peace.

Florida Supreme Court

November 21, 1893

Application by Archibald McCallum & Son for a writ of prohibition to compel Columbus B. Smith, a justice of the peace, to correct an error in refusing to allow an amendment to a defective statement in a replevin affidavit in an action of replevin brough by relators. Denied.

Syllabus by the Court

SYLLABUS

A defect of statement in a replevin affidavit is not fatal to the jurisdiction of the cause, but is amendable under section 1723, Rev. St.; and prohibition is not a proper remedy for correcting the error of a justice of the peace in refusing to allow an amendment of such defect, the error being one committed in the propgress of a cause of which the justice had jurisdiction, notwithstanding the defect.

COUNSEL M. C. Jordan, for plaintiffs.

A. W Cockrell & Son, for defendant.

OPINION

RANEY C.J.

According to the statement of the suggestion for the writ of prohibition, the relators began an action of replevin in April of the present year, in the justice of the peace court for the tenth district of Duval county, against Elisha Gee as assignee of John E. Dupont, successor to Culpepper &amp Dupont, for the recovery of ten half barrels of flour and five barrels of the same article, the whole being valued at $45.25, they filing an affidavit and giving bond with sureties; and the replevin writ and summons were issued and executed, and the declaration was filed. Afterwards the defendant, Gee, moved to quash the proceedings on the ground that the affidavit and bond were not the affidavit and bond required by law. Thereupon McCallum & Son moved to amend in the particulars objected to, but the justice of the peace rendered judgment overruling the motion to amend and dismissing the action; and, further, that the goods, they not having been redelivered to the defendant should be returned to him, and for costs in his favor; and that the defendant have and recover of the plaintiffs McCallum & Son, $47.25, the value of the goods. The plaintiffs, having excepted to the rulings, took an appeal from such judgment to the circuit court, and on the 16th day of October of the present year that court rendered judgment reversing the judgment appealed from, and directing that the justice of the peace should, upon the cause being remanded, 'proceed therein upon the dismissal of the said writ of replevin, as required by law, and in accordance with the opinion of the circuit court filed' therein. The opinion referred to holds that, notwithstanding section 1723, (which reads: 'Pleadings and proceedings in replevin shall be amendable as in other actions, and no motion to dismiss a replevin suit, or quash the execution of the writ shall be granted if application be made to amend in the particular objected to. But if any amendment be made to any replevin bond, such amended bond, although not theretofore binding on the sureties, shall relate back to the institution of the suit, and afford protection to the defendant in replevin from such institution,') the amendment of the affidavit should not have been allowed, and for the reason that an affidavit conforming to the statutory requirements is the foundation of the court's jurisdiction of an action of replevin, and that an amendment cannot be allowed in a case where the court has not acquired jurisdiction, and consequently not of a replevin affidavit, but that the statute authorized in replevin cases only such amendments as could be made in other cases of which the court has jurisdiction. The defect in the affidavit was the omission of the words 'liable to execution,' to be found in section 1712, Rev. St., in...