Western Cas. & Sur. Co. v. Rotter

• Decision Date: 15 September 1939
• Citation: 191 So. 78,139 Fla. 854
• Court: Florida Supreme Court
• Parties: THE WESTERN CASUALTY & SURETY CO. v. ROTTER.

191 So. 78

139 Fla. 854

THE WESTERN CASUALTY & SURETY CO. v. ROTTER.

Florida Supreme Court

September 15, 1939

Rehearing Denied Oct. 5, 1939.

Certiorari to Circuit Court, Dade County; Paul D. Barns, Judge.

Proceeding supplementary to execution by the Western Casualty and Surety Company, a corporation against Julius Rotter. The circuit court of Dade county affirmed a judgment of the civil court of record of Dade county, and the Western Casualty & Surety Company brings certiorari.

Judgment of the circuit court affirming the judgment of the civil court of record quashed.

COUNSEL

Edward E. Fleming and Alfred E. Sapp, both of Miami for petitioner.

Maurice Jacobs, of Miami, for respondent.

OPINION

TERRELL Chief Justice.

On petition for rehearing our attention is directed to certain ambiguities in the former opinion filed herein July 28, 1939. We have accordingly concluded that in the interest of clarity, the said opinion should be withdrawn from the files of the court and this opinion substituted in its stead.

The petitioner, as plaintiff, recovered a judgment at law for $1,200 against respondent, as defendant, on an indemnity agreement. Said judgment was dated December 31, 1937, and was procured in the Civil Court of Record of Dade County. Proceedings supplementary to execution were had wherein a final judgment or order was procured which was ultimately affirmed by the Circuit Court of Dade County. Writ of certiorari was granted by this court to review that judgment.

Petitioner urges two questions as grounds for quashing the judgment of the Circuit Court while respondent urges four questions as grounds for quashing the writ of certiorari.

Proceedings to review judgments of Civil Courts of Record are controlled by Chapter 15666, Acts of 1931 (Extra Session), same being Sections 5168(1) to 5168(12), inclusive, Volume 4, permanent supplement, Compiled General Laws of 1927. This Act gives the Circuit Court in any county where a Civil Court of Record is created, final appellate jurisdiction in all cases arising in the latter courts. It defines in detail the manner in which such cases shall be reviewed, how the Circuit Court shall be organized as an appellate court and the manner of handling and disposing of cases brought to it as an appellate court. Section 3 of said act provides that writs of error to review judgments of the Civil Court of Record by the Circuit Court 'shall be sued out not later than thirty days after the entry of the final judgment sought to be reviewed', unless the judge for good cause shown shall extend the time.

Chapter 15666, Acts of 1931, Ex.Sess., constitutes the Circuit Court in all counties where Civil Courts of Record are created appellate courts to review writs of error from the latter courts. Section 8 designates the second Monday in January and alternate months of the year as appellate days and makes it the duty of all the Circuit Judges to sit en banc, if there are more than one, to hear consider, and determine cases brought before them by writ of error to the Civil Court of Record. It is made the duty of each judge or a majority of them to attend on appellate days and a concurrence of a majority of the members of the Court is necessary to a decision, and in default of such concurrence, the judgment of the Civil Court of Record in said cause shall stand authomatically affirmed. It is further made the duty of Circuit Courts to finally hear, consider, and determine the causes brought before them within five months of the return day of the writ of error and in case no determination is entered of record in any such cause, the judgment of the Civil Court of Record shall stand automatically affirmed unless it is made to appear that one or more of the judges is absent from the County. (This last provision, as to automatic affirmance after five months, was held void in State ex rel. Grodin v. Barns, 119 Fla. 405, 161 So. 568).

This Court takes judicial knowledge of the fact that there are four Circuit Judges in the Eleventh Judicial Circuit and that three of them constitute a quorum to transact such appellate business. In other words, three judges must participate in the disposition of each and every cause. It is shown that only two Circuit Judges participated in the disposition of the judgment brought in question and, being so, it was voidable.

Section 1 of Article 5, Constitution of Florida, authorizes the legislature to set up other Courts and commissions than those in terms...