State v. Canfield

• Decision Date: 16 March 1898
• Citation: 23 So. 591,40 Fla. 36
• Court: Florida Supreme Court
• Parties: STATE ex rel. ANDREU et al. v. CANFIELD et al., City Council.

23 So. 591

40 Fla. 36

STATE ex rel. ANDREU et al. v. CANFIELD et al., City Council.

Florida Supreme Court

March 16, 1898

Error to circuit court, St. Johns county; Rhydon M. Call, Judge.

Mandamus by the state, on the relation of John Andreu and others against Heth Canfield and others, composing the city council of the city of St. Augustine. Judgment for respondents, and relators bring error. Writ of error dismissed.

Syllabus by the Court

SYLLABUS

1. Chapter 4529, Laws, approved May 8, 1897, entitled 'An act to abrogate the writ of scire facias ad audiendum errores in appellate proceedings to the supreme court, and to provide a substitute therefor in civil causes,' held to be not obnoxious to that provision of the constitutions of the United States and of the state of Florida that forbids the deprivation of property without due process of law. Our legislature has the power, not only to regulate and prescribe the procedure to obtain in our several courts, respectively but also to regulate and prescribe the procedure by which causes tried in the courts of first instance shall be transferred for review to other tribunals clothed by the constitution with revisory powers; and when, in so doing, it provides that the issuance and record of a writ of error in the court of first instance shall have the effect of transferring the cause and the litigants therein to the jurisdiction of the revising court for re-examination, it has prescribed that 'due process of law' contemplated by said constitutions. A writ of error proceeding is not such a new and original suit as to require the same strictness and rigidity in the service upon the defendant therein of notice of its institution, as is required at the institution of a new and original action in a court of first instance, but is rather a continuation of an original suit; and a statute providing for constructive notice only of its institution and pendency does not violate that provision of the organic law that prohibits the deprivation of property without due process of law. Carter, J., dissenting.

2. Nothing but a clear violation of the constitution will justify the courts in overruling the legislative will, and where there is a reasonable doubt as to the constitutionality of an act it must be resolved in favor of the act, and it must be upheld.

3. A mandamus against a city council is virtually a proceeding against the corporation, and the judgment therein is obligatory on the members of the board of councilmen in office at the time of its rendition, regardless of mutations made, pending the proceedings, in the personnel of those composing such representative council.

4. Writs of error should in all cases give the individual names of all parties plaintiff and defendant in error in order that the appellate court may know by the record who the parties are before it. A writ of error issued in the name of 'J A. et al.' is nothing more than a writ issued in the name of 'J. A.' alone; and where the judgment thus sought to be reviewed is a joint one against 'J. A.' and other cojudgment defendants, who are not otherwise named or designated in the writ of error than by the use therein of the abbreviation 'et al.,' such writ is fatally defective for the want of necessary parties plaintiff in error; the settled rule being that all parties defendant to a judgment rendered against them jointly must be made parties to a writ of error instituted for its review.

5. A writ of error, amended by bringing into it new parties plaintiff in error, is, as to such new parties, a new writ issued at the time of such amendment for the first time; and this court, according to its established rule, will not permit such amendments to be made after the time limited for suing out writs of error has expired.

6. The provision in chapter 4529, Laws 1897, requiring the writ of error to be recorded in the minute book of the circuit court, is designed as a substitute for the service upon the defendant in error of the abrogated writ of scire facias ad audiendum errores, and serves the purpose of notice to the defendant in error that he and the record of his case have by such writ been removed for review to the appellate court. It is jurisdictional, and must in every case be strictly complied with. The statute does not, however, preclude waiver of notice and voluntary appearance in the appellate court.

7. All original writs of error should be returned to and filed in the appellate court with the record in the cause; or, at latest, by the return day named in the writ; and, in view of the provisions of chapter 4529, Laws 1897, it should in every case have indorsed upon it when returned a certificate of the clerk of the circuit court showing the fact that it has been recorded in the minute book of the circuit court, and the date of such record, and the page of the book where recorded; and the transcript of the record should also contain a certified copy of such record of the writ of error, certified by the clerk of the circuit court in the same manner that he authenticates and transcript of any other document of record in his office, having such copy to show also the date of its record in his minute book.

COUNSEL Alex. St. Clair-Abrams, for plaintiffs in error.

Parrott & Hamlin and W. A. MacWilliams, for defendants in error.

OPINION

TAYLOR C.J.

This cause comes here by writ of error from a final judgment in a mandamus proceeding rendered in the circuit court of St. Johns county on the 8th day of July, 1897. The writ of error therein was issued by the clerk of the circuit court on the 29th day of November, 1897, and was recorded on the same date by the clerk of the circuit court in the minute book of said circuit court, and is returnable to the first day of the present term of this court.

The defendants in error, respondents below, now move this court on special appearance for that purpose alone, to dismiss the writ of error on the following grounds: (1) Because said writ of error does not contain the names of the plaintiffs and defendants in error. (2) Because there has been and is no service or notice of said writ or this appeal, as required by law, upon the respondents named in the petition for and the alternative writ issued in the court below herein, and in favor of whom judgment was rendered, as shown by the transcript of record herein, and this court has acquired no jurisdiction of such defendants. (3) Because this court has not, by virtue of said writ, or of any proceeding or notice herein or in the court below, obtained jurisdiction of the subject-matter of the suit, or any of the defendants in error herein. (4) Because by chapter 4636 of the acts of the legislature of the state of Florida approved May 29, A. D. 1897, the respondents below, who comprised the city council of the city of St. Augustine, under and by virtue of chapter 3972 of the said acts, approved June 3, 1889, ceased to exist as a council, or to represent said city in any capacity, upon the election of a city council pursuant to said chapter 4636, which occurred on the 15th day of June, A. D. 1897, and upon said council being duly qualified and sworn in on the 18th day of June, A. D. 1897; and, said city or new city council never having been made parties to this proceeding in the court below, the judgment below did not affect either the city of St. Augustine or its city council at the time or now existing, and neither are now or can be brought herein before this court; nor can this cause properly be prosecuted against said former city council, who were respondents below, because at the time the judgment appealed from was rendered said council was functus officio, and any further or other prosecution would be and is fruitless. (5) Because, in view of said chapter 4636, which was in force at the time the judgment appealed from was rendered, and of the parties below, no other judgment was or is now possible than that 'the respondents go hence without day,' as adjudged below; and, even if the reasons given therefore by the court below are erroneous, or the motion to quash was improperly sustained, such errors were without injury to the relators below and plaintiffs in error here. (6) Because no constructive or other legal service of the writ of error herein, or any notice thereof, has been made upon the existing members of the city council of the city of St. Augustine, elected pursuant to said chapter 4636. (7) Because the original writ of error herein has not been returned to or filed in this court, or other original evidence shown, that the substituted service or notice prescribed by chapter 4529 of the acts of the legislature of Florida has been complied with. (8) Because of other errors, for the committing of which this writ of error and this cause should be dismissed. Accompanying this motion, and in support thereof, is a sworn statement by one P. S. Arnau, to the effect that he is clerk of the city of St. Augustine, and that it appears from the records of said city in his custody that prior to and up to the 18th day of June, 1897, the following named persons composed the city council of St. Augustine, viz. Heth Canfield, A. J. Watts, W. S. M. Pinkham, E. W. McBride, J. B. Colee, John Papino, Alexander Iwanowski, C.J. Vedder, John Center, and T. W. Bruce; that they held such offices under a former city charter; that under chapter 4636, Laws Fla., an election for city councilmen for said city was held on the 15th day of June, 1897, pursuant to the provisions of said chapter, and that at said election the following persons were elected as councilmen for said for city, viz. Heth Canfield, Jesse McClain, E. E. Boyce, Alexander Iwanowski, E. W. McBride, Marion T. Masters, A. J. Watts, John L. Center, J. B. Colee, and C.J. Vedder, and that ...