Ulsch v. Mountain City Mill Co.

• Citation: 103 Fla. 932,138 So. 483
• Parties: ULSCH v. MOUNTAIN CITY MILL CO.[*]
• Decision Date: 21 December 1931
• Court: United States State Supreme Court of Florida

138 So. 483

103 Fla. 932

ULSCH v. MOUNTAIN CITY MILL CO.^[*]

Florida Supreme Court, Division B.

December 21, 1931

Certiorari to Circuit Court, Duval County; George Cooper Gibbs, Judge.

Action by N.M. Ulsch against the Mountain City Mill Company. Judgment of the Civil Court of Record for the plaintiff was reversed by the Circuit Court, and judgment rendered for the defendant, and the plaintiff brings certiorari.

Judgment of the Circuit Court quashed.

Brown J., dissenting.

SYLLABUS

1. A writ of certiorari will be to a final adjudication of the circuit court made in the exercise of its appellate jurisdiction over inferior courts.

2. When a judgment is obtained in a civil court of record and on appeal to the circuit court, the judgment is reversed, and the cause is remanded, with directions to enter a judgment final in accordance with the mandate, and not for further proceedings in the lower court; such an adjudication by the circuit court is a final one for the disposition of the cause, leaving nothing to be done by the trial court except to render the particular judgment directed.

3. Upon certiorari, the Supreme Court cannot quash an appellate judgment of the circuit court unless it appears from the record that the circuit court, in the exercise of its appellate jurisdiction, has exceeded its jurisdiction, or did not proceed according to the essential requirements of the law, or violated established principles of law, or that the judgment of the circuit court reversing the civil court of record is a palpable miscarriage of justice, or that the result is a substantial injury to the legal rights of the petitioner, or that the judgment sought to be reviewed is illegal or essentially irregular and violative of established principles of law, which have resulted in prejudice and material harm to the petitioner.

4. A circuit court's judgment affirming or reversing a judgment of the civil court of record may be quashed on certiorari only in a case when, considered with reference to the pleadings and record in the civil court of record, it is not in accordance with the essential requirements of law.

5. Under an equitable plea the defendant is only permitted to plead by such plea, or subsequent pleadings, such facts as would in equity entitle the defendant to relief from a judgment for the plaintiff, if such judgment should be obtained in the suit at law.

6. An equitable plea of the character permitted to be filed in actions at law under our statute is essentially a plea in confession and avoidance inasmuch as it must, of necessity admit that plaintiff has a case upon which he would be entitled to a judgment at law in the legal proceeding, but which judgment, because of other facts set up in the plea would nevertheless be such a judgment that a court of equity would grant relief from it as against the plaintiff after he obtained it.

7. In a case tried in the civil court of record of Duval county, the record on appeal, upon which the case was heard and the judgment rendered by the circuit court, did not present, by way of appropriate pleading, any legal issue as to the right of plaintiff to recover upon the cause of action sued on, the only pleading by the defendant being an equitable plea which was not established by the preponderance of the evidence in favor of the plea; held: That judgment by the circuit court reversing plaintiff's judgment in the civil court of record, on the ground that the undisputed evidence did not sustain plaintiff's alleged cause of action, was not according to the essential requirements of law, and should be quashed on certiorari.

COUNSEL

Lloyd Z. Morgan and Wm. D. Morgan, both of Jacksonville, for petitioner.

McCollum & Howell, of Jacksonville, for respondent.

OPINION

DAVIS J.

This is a proceeding in certiorari to the circuit court of Duval county seeking to quash the appellate judgment of that court which reversed a judgment rendered by the civil court of record of Duval county, Fla., and remanded the cause, with directions to the lower court to enter a judgment for the opposite party.

When a judgment is obtained in a civil court of record and on appeal to the circuit court the judgment is reversed, and the cause is remanded, with directions to enter a judgment final in accordance with the mandate, and not for further proceedings in the lower court, such an adjudication by the circuit court is a final one for the disposition of the cause, leaving nothing to be done by the trial court except to render the particular judgment directed. Accordingly, a writ of certiorari will lie to such an adjudication of the circuit court made in the exercise of its appellate jurisdiction over inferior courts. Hartford Accident & Indemnity Co. v. Thomasville, Ga., 100 Fla. 748, 130 So. 7; Waddell v. McAllister, 97 Fla. 1054, 122 So. 578.

The ultimate adjudication here is to quash the judgment or the writ of certiorari after it has been issued. Pick v. Adams, 98 Fla. 140, 123 So. 547.

It is well established by the prior decisions of this court that upon certiorari we cannot quash an appellate judgment of the circuit court unless it appears from the record that the circuit court, in the exercise of its appellate jurisdiction, has exceeded its jurisdiction, or did not proceed according to the essential requirements of the law, or violated established principles of law, or that the judgment of the circuit court reversing the civil court of record is a palpable miscarriage of justice, or that the result is a substantial injury to the legal rights of the petitioner, or that the judgment sought to be reviewed is illegal or essentially irregular and violative of established principles of law, which have resulted in prejudice and material harm to the petitioner. Hunt v. Jacksonville, 34 Fla. 504, 16 So. 398, 43 Am. St. Rep. 214; First Nat. Bank v. Gibbs, 78 Fla. 118, 82 So. 618; State v. Live Oak, P. & G. R. Co., 70 Fla. 564, 70 So. 550; American Ry. Exp. Co. v. Weatherford, 84 Fla. 264, 93 So. 740; Malone v. Quincy, 66 Fla. 52, 62 So. 922, Ann. Cas. 1916D, 208; Srinson v. Tharin, 99 Fla. 696, 127 So. 313; In re Edwards, 100 Fla. 989, 130 So. 615; Harrison v. Frink, 75 Fla. 22, 77 So. 663; Security Finance Co. v. Gardener, 94 Fla. 549, 114 So. 232.

In this case the petitioner was plaintiff, and the respondent here was defendant in the civil court of record. There was an order by the judge of the civil court of record denying the respondent's motion for an instructed verdict at the close of petitioner's testimony. A motion for an instructed verdict for plaintiff was granted.

The respondent appealed to the circuit court of Duval county, where the order and judgment of the civil court of record was reversed, and the cause remanded to the lower court, with instructions to said court to vacate its judgment in favor of the plaintiff and render judgment for the defendant. The judgment of reversal recited the reason that 'it appears that the said plaintiff was under no legal obligation to make the payment for which be sued the defendant and that such payment was a voluntary one on his part,' in consequence of which no recovery should be allowed.

In the civil court of record the cause proceeded to trial upon the first count of an amended declaration, which set up as a basis for recovery that, in consideration that the plaintiff would enter into the service of the defendant, Mountain City Mill Company, as defendant's salesman, the defendant promised and agreed to keep plaintiff's car in repair and to pay for the repairs and upkeep on said car, together with the sum of $30 a week while in defendant's employment; that plaintiff entered the service of the defendant and served as a salesman in strict compliance with the contract, and that defendant paid plaintiff the $30 a week for his services, but did not, in compliance with his contract, pay for certain repair work done on plaintiff's car to the amount of $149.35; that, in consequence thereof, plaintiff claimed a recovery of said $149.35 from the defendant. Certain of the common counts were also included in the declaration to which the defendant filed two pleas, the first of which went out on demurrer, but the second of which the court refused to strike, and also overruled a demurrer seeking to have this plea held bad in substance.

No other pleas appear to have been filed, and the cause was tried on the basis of the special count in the declaration, together with the common counts to all of which the second plea stood as an answer.

Said second plea was as follows:

'And, for a plea on equitable grounds, the defendant says:

'2. That the several causes of action alleged in the several counts of the said declaration are not different causes of action but are one and the same cause of action, to-wit, the cause of action alleged in the first count of the said declaration; that said declaration was filed herein on, to-wit, February 23, 1924, and on, to-wit, March 3, 1924, the defendant filed herein its demurrer to said declaration, its motion for compulsory amendment thereof, and its motion for a bill of particulars thereto; that from thence until, to-wit, the 28th day of November, 1929, no action, step or proceeding

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