State v. Atkinson

• Decision Date: 21 November 1929
• Citation: 98 Fla. 996,124 So. 458
• Parties: STATE ex rel. PEPPER v. ATKINSON, Circuit Judge, et al.
• Court: Florida Supreme Court

124 So. 458

98 Fla. 996

STATE ex rel. PEPPER v. ATKINSON, Circuit Judge, et al.

Florida Supreme Court

November 21, 1929

En Banc.

Original application by the State, on the relation of Frank J. Pepper for a writ of prohibition against H. F. Atkinson, Circuit Judge, and others.

Writ denied.

Syllabus by the Court

SYLLABUS

Writ of error lies from circuit court to final judgment of civil court of record; general appearance in circuit court by defendant in error precludes necessity of determining whether service of scire facias was required (Comp. Gen. Laws 1927 §§ 4622, 5166). A writ of error lies from the circuit court to a final judgment of a civil court of record; and when the defendant in error appears in the cause in the circuit court by making a motion upon grounds that amount to a general appearance in the cause, it is not necessary to determine whether the issue and service of a scire facias was required by the statute.

Special appearance in motion to quash writ of error amounts to general appearance in appellate court. A special appearance in a motion amounts to a general appearance in the cause in an appellate court, where the motion is to quash the writ of error and not to quash the service of the scire facias issued in the cause and the ground of the motion is that the writ of error is returnable less than 25 days from the service of the scire facias.

COUNSEL

Stapp, Gourley, Vining & Ward, of Miami, and Guyte P. McCord, of Tallahuassee, for relator.

OPINION

WHITFIELD J.

In an action at law in the civil court of record for Dade county a final judgment for defendant on demurrer was rendered May 29 1929. The plaintiff took writ of error to the circuit court dated August 12, 1929, returnable September 16, 1929. A scire facias ad audiendum errores was issued August 12, 1929, returnable September 16, 1929. The scire facias was served August 28, 1929. On September 17, 1929, the defendant in error entered a 'special appearance' in the circuit court and moved 'to quash the writ of error and dismiss same' on a ground that the writ of error is made returnable less than 25 days from the time of the service of the scire facias. The circuit judge denied the motion to dismiss the writ of error.

The defendant in error, as relator, here prays for a writ of prohibition to prohibit the circuit court 'from exercising any further jurisdiction' in the cause.

Section 11, c. 11357, Acts Ex. Sess. 1925 (section 5166, Comp. Gen. Laws 1927), provides that: 'The circuit courts shall have appellate jurisdiction in all cases decided by such civil courts of record in the same manner and with the same limitations as in writs of error from the circuit to the Supreme Court.'

Section 2912, Rev. Gen. St. 1920 (section 4622, Comp. Gen. Laws 1927), provides that: 'In all cases except where the writ of error lies into the Supreme Court the clerk, or judge if there be no clerk, issuing the said writ of error shall issue to the defendant in error a scire facias to hear errors, which shall be made returnable with the said writ of error, and shall be served twenty-five days before the return day.'

In this case it is not necessary to determine whether notwithstanding the last-quoted st...