State v. Hocker

• Decision Date: 24 January 1895
• Citation: 16 So. 614,35 Fla. 19
• Parties: STATE ex rel. FLORIDA PUB. CO. v. HOCKER, Judge.
• Court: Florida Supreme Court

16 So. 614

35 Fla. 19

STATE ex rel. FLORIDA PUB. CO. v. HOCKER, Judge.

Florida Supreme Court

January 24, 1895

Application for writ of prohibition upon relation of the Florida Publishing Company against W. A. Hocker, judge of the Fifth judicial circuit of Florida, to restrain him from exercising jurisdiction over an action at law brought by relator in the Fourth judicial circuit, in which the judge of that circuit is disqualified to sit, against relator's consent and protest. A rule issued upon the petition, to which respondent demurred. Rule discharged.

Syllabus by the Court

SYLLABUS

1. Under our constitution and statutes it is not an exercise of extraterritorial jurisdiction for a judge of one circuit to hear and determine, in accordance with section 1078 of the Revised Statutes of Florida, a demurrer in a common-law case pending in another circuit, but in which the judge of such other circuit is unable or disqualified to act.

2. The act of a judge of one circuit in making such an order as may be made in vacation or between terms in a cause pending in another circuit, but in which the judge of said circuit is legally or physically incapacitated to act, is not a transfer of the case from the circuit in which it is pending to the circuit of the judge who makes the order.

3. Section 1078 of the Revised Statutes of Florida is not in conflict with the state constitution of 1885. Because the constitution points out several modes of obtaining a trial in common-law cases, which are usually had in term, it does not follow that the legislature is prohibited from conferring jurisdiction for the disposition of matters pending before a disqualified judge, which can be disposed of in vacation or between terms. The constitution and the statute are entirely consistent with each other.

COUNSEL A. W. Cockrell & Son, for relator.

Chas s. Adams, for respondent.

OPINION

LIDDON J.

The relator, in its petition, alleges, in substance, that a suit at common law has been begun against it by one James Irving Crabbe in the circuit court of the Fourth judicial circuit in and for the county of Duval; that in said suit the relator has filed a demurrer to an amended declaration, which is now pending; that the Honorable R. M. Call, judge of said court has certified his disqualification to hear said cause, by reason of having been of counsel for the plaintiff; that notice has been served upon the relator that a hearing of said demurrer will be had before the respondent, judge of the Fifth judicial circuit of Florida; that the respondent has informed the relator that he will take jurisdiction of said cause, and hear and determine said demurrer that said hearing, if had, will be against the consent and protest of the relator. The petition alleges that said respondent has no judicial power in the premises, and prays for a rule against him as judge to show cause why a writ of prohibition should not issue against him to prohibit him from exercising jurisdiction in said cause, either pro hac vice to determine said demurrer, or in any other matter therein. Upon this petition a rule issued. The respondent has demurred to this rule. Briefly stated, the grounds of demurrer are that no reason is shown in the petition why the respondent should not proceed to adjudicate and determine the demurrer in the case of Crabbe against the relator, and that it is his duty so to do, under section 1078 of the Revised Statutes of the state of Florida. The section of the law in question is as follows 'Whenever the judge of any court, other than the supreme and criminal courts of record, shall be unable from absence, sickness or other cause, or shall be disqualified from interest or any other cause to discharge any duty whatever appertaining to his office, which may be required to be performed in vacation or between terms, it shall be the duty of any other judge of a court of the same jurisdiction as the court in which the cause is pending, on the application of any party, to perform such duties, and hear and determine all such matters as may be submitted to him; and such judge may discharge such duties either in his own or in any other jurisdiction, and shall be substituted in all respects in the place and stead, in the matter aforesaid, of the judge unable or disqualified to act.' The language of this section is certainly broad enough to authorize Judge Hocker to hear and determine the demurrer in question. Such a hearing is a duty 'required to be performed in vacation or between terms.' It is contended, however, that the statute is unconstitutional, because it attempts to confer upon circuit judges extraterritorial jurisdiction in common-law cases, and to transfer such cases from one judicial circuit to another, at the instance of one party, and without the consent of the other party. The only question for consideration is the constitutionality of the section of the Revised Statutes above set forth. We do not think that the determination of this demurrer by Judge Hocker, in accordance with the statute, would be the exercise of extraterritorial jurisdiction. It is certainly not such extraterritorial jurisdiction as was contemplated by this court in the case of State v. Railroad Co., 15 Fla. 201. The extraterritorial jurisdiction meant in that case is where a court, by virtue of a proceeding pending in its own territorial jurisdiction, seeks to take possession and control of property situated beyond its territorial limits. The circuit court, in the case referred to, appointed a receiver for a railroad situated partly within and partly without its territorial jurisdiction. This court, in disposing of the case, says (text, p. 284 et seq.): 'It is a general principle of the common law that no writ or process can run or be executed beyond the territorial jurisdiction of the court out of which it issues; and, independent of legislation, there can be no doubt that the circuit court of one circuit cannot, through its receiver, take possession of property in another circuit. There is no such legislation in this state, and we doubt very much whether such legislation would not be in conflict with the constitution; but that question is not here involved.' The section of the Revised Statutes above quoted did not first become a part of our law by the adoption of the Revised Statutes. The main features of the section have been upon our statute book since 1851. Section 4, c. 373, Laws Fla. 1851; McClel. Dig. § 27, p. 337. The only change made by the Revised Statutes is to make the act more applicable to our present judicial system, and to to other tribunals than the circuit court. This statute was, therefore, in force, and had been a part of the statutory law of the state, and had been construed by this court, for years before the decision in 15 Fla. supra, that there was no statute in the state conferring extraterritorial jurisdiction upon the circuit courts. It follows, as a necessary consequence of this decision, that this court did not construe the statute in question as conferring such extraterritorial jurisdiction. Not only by necessary implication, but by actual, positive adjudication, this court has determined the act to be free from constitutional...