State v. Walker
| Decision Date | 09 October 1893 |
| Parties | STATE ex rel. PENSACOLA & A. R. CO. et al. v. WALKER, Circuit Judge. |
| Court | Florida Supreme Court |
Original action in the name of the state, at the relation of the Pensacola & Atlantic Railroad Company, against David S Walker, circuit judge, for mandamus requiring defendant to entertain a writ of error to a judgment of a justice of the peace. Judgment for defendant.
Syllabus by the Court
1. A peremptory writ of mandamus will not be granted against the defendant named in the alternative writ when he has not appeared in the action, and there is no evidence of legal service of the alternative writ on him.
2. The act of June 2, 1887, limited the time for taking appeals to the circuit court from judgments of justices of the peace to 30 days, and no review of such judgments could be had by a writ of error taken after the expiration of the thirty days.
COUNSEL John H. Carter, for relators.
The alternative writ of mandamus was issued December 2, 1889. The indorsement of service is as follows:
The sheriff of Escambia county was not at the time of the service of the writ the sheriff of this court, nor even ex officio a deputy of our sheriff, as he is now, under section 1324, Rev St., nor is there any evidence that he was ever deputized by our sheriff to make the service. Therefore there is no legal evidence of service of the writ, even if it be that such a writ can be lawfully served by a private person in this state, as it seems can be done in some jurisdictions, (High, Extr. Rem. § 517.) Consequently, and in view of the fact that the defendant never appeared, there has not been a legal basis for proceeding against him. It will be ordered accordingly.
On Motion to Amend Return.
Subsequently to the filing of the above opinion, the relators moved to amend the return of service of the alternative writ so as to show that it was in fact made by a proper officer, whereupon the court rendered the following opinion:
The relators have moved to amend the return. Waiving the manifest insufficiency of the motion and the question of the abatement of the proceeding, in view of the death of Judge Walker, the motion must be denied, for the reason that a writ of error does not lie from the circuit court to review the judgment of a justice of the peace. The constitution of 1868, as amended in 1875, (section 8, art. 6,) gave the circuit courts final appellate jurisdiction in all civil cases arising in a court of a justice of the peace where the amount or value of the property involved was $25 and upwards. An act of February 10 1877, provided that any party dissatisfied with a judgment of a justice of the peace might, within 10 days after the entry of the judgment, appeal to the circuit court of the county; but, to make his appeal effectual, he or his agent or attorney should make and file with the justice an affidavit that he appeals in good faith, and not for the purpose of delay, and also file a specified agreement, signed by one or more sureties, and conditioned, if the appeal should be dismissed or judgment be rendered against the appellant, to pay the amount of the judgment, with interest and all costs, and guarantying that the appellant would comply with the final judgment and order of the court. In 1882 this...
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