State v. Wills

• Decision Date: 28 March 1905
• Citation: 49 Fla. 380,38 So. 289
• Parties: STATE ex rel. DUKE v. WILLS, Judge.
• Court: Florida Supreme Court

38 So. 289

49 Fla. 380

STATE ex rel. DUKE v. WILLS, Judge.

Florida Supreme Court

March 28, 1905

In Banc. Application by the state, on the relation of S. V Duke, for writ of mandamus to James T. Wills, judge of the Eighth Judicial Circuit. Motion to quash writ denied.

Syllabus by the Court

SYLLABUS

1. Section 1 of chapter 4055, p. 92, Acts 1891, adopting the Revised Statutes, provides that 'statutes passed at this session of the Legislature shall not be repealed or affected by said revision, but shall have full effect as if passed after the enactment of said revision, except those acts passed at this session which are amendatory of laws omitted from said revision.' Chapter 4021, p. 50, Acts 1891, went into effect May 19, 1891, and is not amendatory of any law omitted from the Revised Statutes; consequently it is not 'repealed or affected by said revision, but shall have full effect as if passed after the enactment of said revision,' which revision became operative June 13, 1892.

2. Section 1 of chapter 4021, p. 50, Acts 1891, provides that any person charged before and convicted in any municipal or recorder's court within this state of any offense may appeal from the judgment of such court to the circuit court of the county in which such conviction took place within 30 days of such conviction, provided a bond be given 'conditioned to prosecute his appeal'; and section 2 (page 51), recognizing the right so given, provides that 'such appeals shall be taken to the circuit court by bill of exceptions within said thirty days, in the same manner as now prescribed by law for appeals from the circuit court to the Supreme Court.' The right to an 'appeal' is secured by the first section of the act, and the expression in the second section that 'such appeals shall be taken * * * in the same manner as now prescribed by law for appeals from the circuit court to the Supreme Court' has reference to the manner prescribed by law for appeals at the time the act took effect, to wit, May 19, 1891. On that date appeals with bills of exceptions were provided for from the circuit courts to the Supreme Court in civil causes at law. The reference was to the manner of taking appeals in civil causes.

3. The Revised Statutes became operative June 13, 1892, and section 2969 of the revision provides that 'writs of error lie into the circuit court * * * from all final judgments and sentences of municipal courts.' This provision of the Revised Statutes does not take from a person against whom a judgment is rendered in a municipal court the right to a review of such judgment by the circuit court by an appeal under chapter 4021, p. 50, Acts 1891.

4. The issuance of a writ of error is not necessary to give to a circuit court jurisdiction of an appeal properly taken from a judgment of a municipal court.

5. When a circuit court dismisses an appeal from a municipal court on the ground that it had no jurisdiction to entertain it because no writ of error had issued therein, mandamus is the proper remedy to require the court to entertain the appeal.

6. Where a circuit court dismisses an appeal from a municipal court on the ground that it had no jurisdiction, as no writ of error had been issued in the cause, it is not merely a determination of a question of final appellate practice in the circuit court, but such dismissal is a refusal to exercise a jurisdiction conferred by law. In such a case mandamus may be had to require the court to hear and determine the appeal.

COUNSEL Robert E. Davis, for relator.

W. S Broome, for respondent.

OPINION

WHITFIELD C.J.

This is a case of original jurisdiction. The alternative writ of mandamus issued on behalf of the relator against the respondent alleges, in substance: That S. V. Duke was charged in the mayor's court of the city of Gainesville, Fla with a violation of a municipal ordinance of said city. That upon the trial on January 30, 1903, he was convicted, and by such court sentenced to pay a fine, and in default of such payment to be imprisoned for 30 days. That the said S. V. Duke then and there in open court applied for and entered his appeal from said judgment and sentence of said mayor's court aforesaid to the next succeeding and ensuing term of the circuit court in and for Alachua county, which appeal was in writing, and was then and there filed in said mayor's court. That said S. V. Duke, on February 18, 1903, filed in the office of the clerk of the circuit court for Alachua county his appeal bond in said cause, which bond was on said day approved by said clerk. That on said day he filed in the office of the said clerk of the circuit court the record and proceedings of said cause wherein he had been tried and convicted in such mayor's court, from the judgment and sentence of which he had taken said appeal. That on May 14, 1903, he filed therein his assignment of errors as required by law; that on October 21, 1904, during the fall term of said circuit court, the Honorable J. T. Wills, judge of said court, presiding, the said cause came on to be heard on motion made by the appellee therein, the city of Gainesville, by its attorney, to dismiss said appeal on several grounds, viz.: (1) Because there is no writ of error in said cause; (2) because there is no scire facias; (3) because the appellate court has no jurisdiction; (4) because there is no assignment of errors in said court. That the order of the judge on said motion was as follows: 'Motion granted October 21, 1904. Defendant excepts. J. T. Wills, Judge.' A copy of the proceedings referred to is attached to the alternative writ as an exhibit.

The respondent, by counsel, moved to quash the alternative writ of mandamus issued by this court on the following grounds, to wit: '(1) That the said writ shows upon its face that no writ of error was issued from the circuit court to the municipal court of the city of Gainesville, Florida, as required by law: (2) that said writ seeks to control the judicial determination of a question by the respondent sitting as a court of final appellate jurisdiction; (3) that the said writ seeks to perform the functions of writ of error; (4) that the said writ shows upon its face that respondent, in the exercise of his judicial duty and power, took jurisdiction of the said cause attempted to be appealed from said municipal court to the circuit court of Alachua county, Florida, and that he judicially determined the issues presented to him upon questions of practice in his court as provided by law.'

In the argument of the motion to quash counsel for the respondent conceded that all the grounds of the motion to dismiss the appeal taken from the mayor's court to the circuit were abandoned at the hearing of the motion, except the ground that no writ of error had been issued in the cause, and that the order of the judge dismissing the cause was made because no writ of error had been issued therein. This presents the question whether the issuance of a writ of error is essential to give the circuit court appellate jurisdiction of a judgment or sentence of a mayor's court. Section 11 of article 5 of the Constitution provides that the circuit courts 'shall have final appellate jurisdiction * * * of judgments or sentences of any mayor's court.' Chapter 4021, 'An act regulating appeals from municipal and recorder's courts in this state,' which took effect May 19, 1891 (Acts 1891, p. 50), provides in section 1 'that any person charged before and convicted in any municipal or recorder's court, within this state, of any offense, may appeal from the judgment of such court to the circuit court of the county in which such conviction took place within thirty days of such conviction,' provided a bond be given 'conditioned to prosecute his appeal.' The act further provides in section 2 that 'such appeals shall be taken to the circuit court by bill of exceptions within said thirty days, in the same manner as now prescribed by law for appeals from the circuit to the supreme court.' Municipal and recorder's courts include the mayor's court. Ex parte Peacock, 25 Fla. 478, 6 So. 473. At the time chapter 4021 went into effect any party dissatisfied with any sentence by a mayor's court had 'the right of appeal, writ of error or writ of certiorari from the same to the circuit court.' Section 1, c. 1262, p. 11, Laws Fla., approved December 6, 1861 (section 35, p. 253, McClellan's Dig.).

It is contended for the respondent that as section 2969 of the Revised Statutes, which became operative June 13, 1892 provides that 'writs of error lie into the circuit court * * * from all final judgments and sentences of municipal courts,' and as the Revised Statutes do not provide for 'appeals' to the circuit courts from judgments and sentences of municipal courts, the provisions of chapter 4021, p. 50, Acts 1891, allowing 'appeals'...