State Ex Rel. Schwarz v. Heffernan

• Decision Date: 27 February 1940
• Citation: 142 Fla. 137,194 So. 313
• Court: Florida Supreme Court
• Parties: STATE ex rel. SCHWARZ v. HEFFERNAN, Judge, et al.

194 So. 313

142 Fla. 137

STATE ex rel. SCHWARZ v. HEFFERNAN, Judge, et al.

Florida Supreme Court, Division B.

February 27, 1940

Rehearing Denied March 14, 1940.

Error to Circuit Court, Dade County; Alto Adams, Judge.

Proceeding in prohibition by the State, on the relation of William Schwarz, against the Honorable David J. Heffernan and the Honorable Ross Williams, as judges of the civil court of record in and for Dade county, Fla., and others, involving the question of the sufficiency of certain items of costs in the form of a cost bill. Judgment dismissing the proceeding and plaintiff brings error.

Affirmed.

COUNSEL Roland W. Granat, of Miami Beach, for plaintiff in error.

Knight & Green, of Miami, for defendants in error.

OPINION

CHAPMAN Justice.

This case is before the Court on a writ of error to a final judgment entered by the Circuit Court of Dade County Florida, sustaining a demurrer to and dismissing a proceeding in prohibition. The suggestion for a writ of prohibition presented the question of the legal sufficiency of nine items of costs in the form of a cost bill in the total sum of $78.75 approved or allowed and judgment entered therefor by the Honorable David J. Heffernan, a Judge of the Civil Court of Record of Dade County, Florida, as lawful costs when plaintiff in error elected to take a nonsuit in the case of William Schwarz v. Miami Beach Railway Company then pending in the Civil Court of Record of Dade County. The power of the Judge of the Civil Court of Record to enter the judgment for costs is authorized by Sections 4673, and 4675 C.G.L.

We have presented at the threshold of this case the question of whether the remedy of obtaining a review on the part of the plaintiff in error is by prohibition proceedings or by writ of error from the final judgment entered by the Civil Court of Record to the Circuit Court of Dade County. If the proceedings in prohibition as originated in the Circuit Court of Dade County in this cause and brought to this Court by writ of error is the proper remedy, then the inquiry and determination of the nine items of costs may be decided by this Court, but if an appeal from the final judgment entered by the Civil Court of Record is the proper remedy, then the final judgment appealed from must by this Court be affirmed.

Section 4673, C.G.L., provides that the Clerks of the several courts or the Judges shall tax costs accuring in each case. It is contended by counsel for plaintiff in error that certain of the nine items of costs composing the judgment for $78.75 did not appear in the record and files of the Court and should have been fully established or proven by competent testimony given before the Judge of the Civil Court of Record and written notice of the said hearing and proceeding should have been served on counsel of record for the party against whom the judgment was sought.

The prayer of the petition for a writ of prohibition seeks to prohibit the Judges and Clerk of the Civil Court of Record of Dade County, and the Miami Beach Railway Company, from exercising or attempting to exercise jurisdiction by reason fo the award of costs in the judgment of nonsuit and prohibiting the Judges thereof from allowing the award of costs as expressed in the judgment of nonsuit from affecting in any manner any subsequent suit between the parties upon the same cause of action, the order of nonsuit as entered in the Civil Court of Record being conditioned on the payment by the plaintiff in error of the costs so taxed.

It is fundamental that prohibition does not lie to correct errors of a court which is acting within its jurisdiction, although proceeding improperly in the exercise of its jurisdiction. Prohibition cannot be used to supersede the functions of an appeal or writ of error unless authorized by statute. Likewise, where the existence of jurisdiction depends on controverted facts which the inferior court has the jurisdiction to determine and in the exercise of this jurisdiction errs, the remedy is by an appeal or writ of error and prohibition cannot be used as a substitute. See 50 C.J. par. 43, pages 677, 678. Prohibition lies only when a court is without jurisdiction or is attempting to act in excess of jurisdiction and then only...