State v. Barrs

• Decision Date: 18 April 1932
• Parties: STATE ex rel. VEAL v. BARRS, Judge, et al.
• Court: Florida Supreme Court

140 So. 908

105 Fla. 27

STATE ex rel. VEAL v. BARRS, Judge, et al.

Florida Supreme Court

April 18, 1932

En Banc.

Proceeding by the State of Florida, on the relation of W. B. Veal, for a writ of prohibition to Burton Barrs, as judge of the Civil Court of Record for Duval County, and another.

Writ of prohibition absolute denied and proceeding dismissed.

COUNSEL Ernest E. Roberts, of Miami, for relator.

H. P Adair, P. H. Odom, E. J. L'Engle, A. W. Cockrell, Jr. George C. Bedell, and Gary Alexander, all of Jacksonville for respondents.

OPINION

DAVIS J.

The facts upon which the writ of prohibition is sought in this case are as follows: J. Nooney Co., Inc., on September 21, 1931, instituted suit against the relator, W. B. Veal, in the civil court of record for Duval county, Fla. On that day the civil court of record issued a summons ad respondendum directed to all and singular the sheriffs of the state of Florida. On September 22, 1931, the summons ad respondendum was placed in the hands of the sheriff of Dade county, Fla., who, on the 24th day of September, 1931, duly served the same in Dade county, Fla., upon the defendant named therein, W. B. Veal. The return day in the summons was the first Monday in October, 1931. On or before the appearance day, said W. B. Veal, named in the summons as defendant, entered his special appearance in the civil court of record for Duval county solely for the purpose of resisting the jurisdiction of said court over his person by reason of the service of the summons ad respondendum which had been made upon him in Dade county, and not in Duval county. Thereafter in due course, the defendant moved to quash the service upon the ground that under Senate Bill 351, 1931 Session of the Legislature, which became chapter 14664, Acts of 1931, a summons ad respondendum issued out of a civil court of record was provided to run throughout the county only where such civil court of record is situated, and should be directed to the sheriff of such county, and not to all and singular the sheriffs of the state of Florida, as was done in said case. The respondent judge of the civil court of record of Duval county denied the motion to quash. This having been done, petitioner Veal applied to this court for a rule nisi in prohibition alleging that the civil court of record of Duval county was about to take further proceedings in said cause against him without having acquired jurisdiction over his person through the service of a proper summons ad respondendum, or otherwise. Speight v. Horne (Fla.) 133 So. 574, 577.

The court granted the rule nisi and the cause is now before the court on the demurrer of the respondent judge to the relator's suggestion for a writ of prohibition absolute.

Chapter 14664, Acts of 1931, reads as follows:

'An Act to Amend Section 9 of Chapter 11357, Acts of the Extraordinary Session of 1925, the Same Being Section 5164 of the Compiled General Laws of Florida, 1927, Relating to Rules of Procedure and Prescribing the Issuance, Service and Return of Process for Civil Courts of Record.

'Be it enacted by the Legislature of the State of Florida:

'Section 1. That Section 9 of Chapter 11357, Acts of the Extraordinary Session of 1925, the same being Section 5164 of the Compiled General Laws of 1927, relating to rules of procedure, and prescribing the issuance, service and return of process for Civil Courts of Record be and the same is amended to read as follows:

"5164. Rules of Procedure. Rules of pleading, practice, procedure and evidence, and the laws of this State prescribing rules of pleading, practice, procedure and evidence, and prescribing issuance, service and return of process for Circuit Courts, shall, so far as they are applicable, govern such Civil Courts of Record; provided, however, that in all civil causes summons ad respondendum and other process, when issued out of any Civil Court of Record of this State shall run throughout the county only where such Civil Court of record is situated and shall be directed to the Sheriff of such County.'

'Sec. 2. All laws and parts of laws in conflict with this are hereby repealed.

'Sec. 3. This Act shall become a law upon its passage and approval by the Governor, or upon its becoming a law without his approval.

'Approved June 2, 1931.'

By reference to this act, it will be noted that it undertakes specifically to amend section 9 of chapter 11357, Acts of the Extraordinary Session of 1925. The section attempted to be thus amended appears as section 5164 of the Compiled General Laws of Florida and refers to rules of procedure and prescribes the issuance, service, and return of process for certain courts designated as civil courts of record. Conceding, therefore, for the sake of argument, that the statute as drawn is constitutionally sufficient for its purpose, ^[1] the respondent contends that by its own terms it is not applicable to the court functioning as the civil court of record of Duval county, Fla., and if not so applicable, that the writ of prohibition should be denied by reason thereof. With that contention we shall presently deal.

Section 1 of chapter 14664, Acts of 1931, Laws of Florida, purports by its title to amend only section 9 of chapter 11357, Acts of 1925, Ex. Sess. Chapter 11357, Acts of 1925, Ex. Sess., created in a certain class of counties therein described certain civil courts of record other than the civil court of record of Duval county, which last-mentioned court was already in existence and functioning at the time under the provisions of chapter 8521, Acts of 1921. ^[2] Unless therefore by some legitimate rule of construction, the proviso in amended section 9 of chapter 11357, Acts of 1925, Ex. Sess., can be extended to process issued by the civil court of record of Duval county, which exists under a separate, different, and disconnected statute, chapter 14664, supra, can have no effect upon process of any civil court of record other than those civil courts of record which were created and exist under chapter 11357, as hereinbefore mentioned.

The purpose of creation, history, and legal status of the civil court of record in and for Duval county is a matter of which this court takes judicial notice. Indeed, it is a matter concerning which the bar of Florida is generally familiar, since it was first in Duval county that civil courts of record had their initial conception, creation, and existence. The original civil court of record in that county was organized under chapter 6904, Acts of 1915, which chapter was re-enacted in the Revised General Statutes of 1920 as sections 3310-3324, R. G. S.

Pursuant to the 1915 statute, the civil court of record in and for Duval county, with the judge provided therefor by law, began to function. Afterward in 1921 the Legislature enacted chapter 8521, Acts of 1921, by which another court of the same name was created, with a continuance of substantially the same kind of jurisdiction and powers as the old. The subsequent organization and functioning of the present civil court of record of Duval county as a separate and distinct civil court of record from the other civil courts of record of this state, has been consistently recognized for more than ten years last past, not only by this court, but by the Legislature itself, which in enacting chapter 11357, Acts of 1925, Extraordinary Session, designedly brought into existence another class of civil courts of record, giving to them the same title but conferring a broader jurisdiction with correspondingly increased powers substantially different in terms and relative degree from that provided to be possessed and exercised by the civil court of record of Duval county under chapter 8521. For example, under chapter 11357, supra, civil courts of record are given jurisdiction in controversies involving amounts up to $5,000, while under chapter 8521, the courts there created are limited to $3,000. In counties where county courts have been abolished, it is provided that such civil courts of record, under chapter 11357, shall have two judges. See chapter 11970, Acts of 1927. Other distinctions of importance could be pointed out, but these are sufficient to demonstrate the difference in the character of the courts created by chapter 11357, supra, despite their similarity in name to those created by chapter 8521, supra.

The civil court of record of Duval county has never functioned nor exercised jurisdiction other than under chapter 6904, Acts of 1915, sections 3310-3324, R. G. S., and chapter 8521, Acts of 1921. This fact has been noted and referred to in many opinions of this court, whereof a few are hereinafter cited.

The Supreme Court of Florida, both in directing and sustaining the civil court of record in Duval county as to its jurisdiction, process, and procedure, has invariably based its decisions on the particular laws hereinbefore referred to under which the civil court of record of Duval county was brought into existence and continued to function, and in no instance, that we are aware of, has this court referred to chapter 11357, Acts of 1925, Ex. Sess., or any act amendatory or supplementary thereto, as having any bearing on the status or powers of those civil courts of record authorized and acting solely under chapter 8521. Forest Investment Co. v. Aultman, 80 Fla. 790, 87 So. 43; American Ry. Co. v. Weatherford, 84 Fla. 264, 93 So. 740; State ex rel. Royal Ins. Co. v. Barrs, 87 Fla. 168, 99 So. 668; Barrs v. State ex rel. Jacksonville Realty & Mtg. Co., 91 Fla. 30, 107 So. 249; Atlantic Coast Line Ry. Co. v. Florida Fine Fruit Co., 93 Fla. 161, 112 So. 66, 113 So. 384; Barrs v. State ex rel. Britt, 95 Fla. 75, 116 So. 28.

The original...