State ex rel. Reynolds Const. Co. v. Hendry

• Decision Date: 17 December 1948
• Citation: 37 So.2d 904
• Parties: STATE ex rel. REYNOLDS CONST. CO., Inc. et al. v. HENDRY, Judge, et al.
• Court: Florida Supreme Court

37 So.2d 904

STATE ex rel. REYNOLDS CONST. CO., Inc. et al. v. HENDRY, Judge, et al.

Florida Supreme Court

December 17, 1948

Robertson & McLeod, of Coral Gables, for petitioner Reynolds Const co., inc.

Hunt &amp Salley, of Miami, for petitioner Home Sweet Home Operating Co.

Henry G Simmonite, of Miami, for respondents.

BARNS, Justice.

The respondent Stevenson, as plaintiff below, filed in the Civil Court of Record his petition entitled 'Petition for Enforcement of Lien.'

On November 3 1948, a 'Summons to Show Cause' was issued by the clerk, returnable within five (5) days from date thereof, requiring the defendants (petitioners here) 'to show cause * * * why said claim should not be paid.' The 'summons' was served on November 5, 1948.

On November 8, 1948, the defendants (petitioners here) filed a 'Motion to Quash Summons' upon the following grounds:

'That said summons was dated November 3, 1948, and was served at 4:30 o'clock P.M. on November 5, 1948, on an officer of this corporation and that between the day of the service of the summons and the return day thereof there is not five (5) days as required by Section 86.06, F.S.A; that said summons was served at the close of the business day on Friday, November 5, 1948, and that between the date of service of the same and the return day there were two non-working days, namely, Saturday and Sunday, November 6 and 7, 1948,'

Also on November 8, 1948, the defendant filed a 'Motion to Quash Petition.'

Also, on November 8, 1948, defendants filed an 'Affidavit of Defense.'

On November 8, 1948, plaintiff Stevenson filed a 'Praecipe for Default' in event the defendants failed: '* * * to file a Motion to Quash or to file an affidavit denying the facts on which the summons herein was issued on this the return day of the summons in accordance with Paragraph '4' of Section 86.06 of the Florida Statutes.'

On November 22, 1948, the trial court adjudicated as follows:

'Considered, ordered and adjudged that the Motion to Quash the Petition filed by the Defendant, Reynolds Construction Company, Inc., be and the same is hereby denied and,

'Counsel for said defendant having stated to the Court that he abandoned the Motion to Quash the Summons it is,

'Further ordered and adjudged that the Motion to Quash the Summons be and the same is hereby denied and it is,

'Further ordered and adjudged that this cause be and the same is hereby set down for trial upon the Affidavit of Defense filed by the Defendant, Reynolds Construction Company, Inc., and the Affidavit of Traverse filed by the Home Sweet Home Operating Co., at the hour of 10:00 A.M. on Monday, the 29th day of November, A.D., 1948.'

After the foregoing proceedings had been had, the defendants, Reynolds Construction Co., Inc., and Home Sweet Home Operating Co., petitioned this Court for a Writ of Prohibition.

Respecting the use of prohibition, this Court, in the Lorenzo-Murphy case, cited with approval the prior holdings, to-wit:

'In the case of Peacock, County Judge, et al. v. Miller, decided February 28, 1936, as reported in 123 Fla. 97, 166 So. 212, this court held: 'Prohibition does not lie to prevent or correct commission of errors on part of court that is proceeding within its jurisdiction.'' Lorenzo v. Murphy, 159 Fla. 639, 32 So.2d 421, 423.

And also:

'In the case of Adams et ux. v. Lewis et al., decided February 18, 1941, as reported in 146 Fla. 177, 200 So. 852, 853, this Court, speaking through Mr. Justice Elwyn Thomas, said: '* * * proceedings in prohibition should be restricted to the field for which they were meant and not become a vehicle for the determination of questions involving the correct or incorrect decisions of another court in matters in which that court has the authority to act.''

It affirmatively appears that the trial court had jurisdiction over a case of the class then before it and over the parties to the proceedings and that the jurisdiction of the Civil Court of Record has been invoked. The trial court has jurisdiction to proceed, and such errors as may actually occur may be reviewed only in the ordinary and regular manner. Jurisdiction naturally includes that power to err, which of course is not to be anticipated, but, even if correctly anticipated, neither the mere fear of error nor reasonable certainty of error nor actual error will impair jurisdiction.

The petition for prohibition is denied.

THOMAS, C. J., and ADAMS and HOBSON, JJ., concur.

NOTES BY MR JUSTICE BARNS.

In passing, without deciding, and as obiter dicta, some further observations will be made. Both respondents and petitioners have at times according to the record, assumed that the plaintiffs' claim was governed by Section 86.06, F.S.1941, F.S.A., which section has to do with the enforcement of a lien ...