Tantillo v. Miliman

CourtUnited States State Supreme Court of Florida
Writing for the CourtTHOMAS; DREW, C. J., O'CONNELL, J., and ANDERSON
Citation87 So.2d 413
Decision Date02 May 1956
PartiesEnrice TANTILLO and Sylvia Tantillo, his wife, Petitioners, v. Harry MILIMAN, doing business as House Beautiful Furniture Company, Respondent.

Page 413

87 So.2d 413
Enrice TANTILLO and Sylvia Tantillo, his wife, Petitioners,
v.
Harry MILIMAN, doing business as House Beautiful Furniture Company, Respondent.
Supreme Court of Florida, Special Division B.
May 2, 1956.

Page 414

Robert King High, Miami, for petitioners.

Starr W. Horton, of Horton & Horton, Miami, for respondent.

THOMAS, Justice.

The petitioners, who were then plaintiffs, instituted an action in the Circuit Court of the Eleventh Judicial Circuit against the respondent, then defendant, in which each of them claimed damages 'in excess of' $5000 for malicious prosecution. Issues were formed by the defensive pleadings, and the trial commenced in the circuit court before a jury. At the conclusion of the plaintiffs' testimony, the defendant requested the court to charge the jury to return a verdict in his favor on the ground among others, that the amount involved was insufficient to vest in the court jurisdiction of the cause.

The judge then entered an order in which he expressed the opinion that no factual basis had been developed for a claim by either of the plaintiffs, whose claims he thought were separate and misjoined, in an amount exceeding $5000, but that this and the other grounds on which the motion was founded did not justify a directed verdict. In the order he declared a mistrial and, under 30 F.S.A. Rule 1.39(b), 1954 Rules of Civil Procedure, he transferred the case to the Civil Court of Record of Dade County, Florida, there to be tried as if it had been commenced in that court.

The rule simply provides that 'If at any time it should appear that a suit is pending in the wrong court of any county it may be transferred to the proper court within said county * * *.'

Before discussing the vital problem involved here we announce the view that the judge's action in transferring the case is properly reviewable by certiorari because, though the controversy was concluded so far as the circuit court was concerned, there had been no such an adjudication as would support an appeal. Sec. 59.02(1), Florida Statutes 1953, and F.S.A. Nor was the order in a true sense interlocutory because if it was correctly entered, all future jurisdiction will be exercised by an entirely different court. Of course, there is no right to appeal from an interlocutory order entered in a common law case. If the petition for certiorari is not entertained, the petitioners will have no choice but to enter the civil court of record, secure an adjudication, and if unfavorable, then be required to return for review to the very court which had sent them there. In the event of an adverse ruling in the circuit court, then acting as an appellate court, there could be no final review in the supreme court except via certiorari. This possible circuitous route convinces us that we should entertain the petition and decide whether or not...

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25 practice notes
  • Jennings v. Dade County, Nos. 88-1324
    • United States
    • Court of Appeal of Florida (US)
    • 6 Agosto 1991
    ...that cannot afford him the relief requested and for that reason does not afford him an adequate remedy. See Tantillo v. Miliman, 87 So.2d 413 (Fla.1956); Norris v. Southern Bell Tel. & Tel. Co., 324 So.2d 108 (Fla. 3d DCA 1960). The same reasoning does not apply against Schatzman. Nonethele......
  • Thoman v. Ashley, No. 4548
    • United States
    • Court of Appeal of Florida (US)
    • 18 Diciembre 1964
    ...of law and justice and where the 'circuitous route' would result in an impractical method of review. Tantillo v. Miliman, Fla.App.,1956, 87 So.2d 413. The discretionary writ has also issued to review charges that the lower court's procedure was 'essentially irregular,' not according to the ......
  • Bain v. State, No. 97-02007
    • United States
    • Court of Appeal of Florida (US)
    • 29 Enero 1999
    ...in order for circuit court jurisdiction to exist; the plaintiff must simply allege such damages in good faith. See Tantillo v. Miliman, 87 So.2d 413, 415 (Fla. 1956); Floyd v. Baxter, 508 So.2d 549 (Fla. 1st DCA 13. I am inclined to believe that some of the reform sought by the legislature ......
  • Levine v. Knowles, No. 66--798
    • United States
    • Court of Appeal of Florida (US)
    • 14 Marzo 1967
    ...and we have decided to treat the appeal as a petition for common law certiorari under the authority of Tantillo v. Miliman, Fla.1956, 87 So.2d 413; Easley v. Page 331 The Garden Sanctuary, Inc., Fla.App.1960, 120 So.2d 59, 78 A.L.R.2d 1199; Kautzman v. Bandler, Fla.App.1960, 118 So.2d 256; ......
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25 cases
  • Jennings v. Dade County, Nos. 88-1324
    • United States
    • Court of Appeal of Florida (US)
    • 6 Agosto 1991
    ...that cannot afford him the relief requested and for that reason does not afford him an adequate remedy. See Tantillo v. Miliman, 87 So.2d 413 (Fla.1956); Norris v. Southern Bell Tel. & Tel. Co., 324 So.2d 108 (Fla. 3d DCA 1960). The same reasoning does not apply against Schatzman. Nonet......
  • Thoman v. Ashley, No. 4548
    • United States
    • Court of Appeal of Florida (US)
    • 18 Diciembre 1964
    ...of law and justice and where the 'circuitous route' would result in an impractical method of review. Tantillo v. Miliman, Fla.App.,1956, 87 So.2d 413. The discretionary writ has also issued to review charges that the lower court's procedure was 'essentially irregular,' not according to the ......
  • Bain v. State, No. 97-02007
    • United States
    • Court of Appeal of Florida (US)
    • 29 Enero 1999
    ...in order for circuit court jurisdiction to exist; the plaintiff must simply allege such damages in good faith. See Tantillo v. Miliman, 87 So.2d 413, 415 (Fla. 1956); Floyd v. Baxter, 508 So.2d 549 (Fla. 1st DCA 13. I am inclined to believe that some of the reform sought by the legislature ......
  • Levine v. Knowles, No. 66--798
    • United States
    • Court of Appeal of Florida (US)
    • 14 Marzo 1967
    ...and we have decided to treat the appeal as a petition for common law certiorari under the authority of Tantillo v. Miliman, Fla.1956, 87 So.2d 413; Easley v. Page 331 The Garden Sanctuary, Inc., Fla.App.1960, 120 So.2d 59, 78 A.L.R.2d 1199; Kautzman v. Bandler, Fla.App.1960, 118 So.2d 256; ......
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