Wolfe v. City of Miami

• Decision Date: 09 March 1934
• Citation: 154 So. 196,114 Fla. 238
• Parties: WOLFE v. CITY OF MIAMI.
• Court: Florida Supreme Court

154 So. 196

114 Fla. 238

WOLFE v. CITY OF MIAMI.

Florida Supreme Court

March 9, 1934

En Banc.

Error to Circuit Court, Dade County; Uly O. Thompson, Judge.

Action by Carolyn Wolfe against the City of Miami, in which a verdict was returned for defendant. To review an order awarding plaintiff a new trial, defendant brings error, and plaintiff brings cross-error. On motion to dismiss the cross writ of error.

Cross writ of error quashed, without prejudice.

COUNSEL Wallace Ruff and Hendricks & Hendricks, all of Miami, for cross plaintiff in error.

J. W Watson, Jr., Mitchell D. Price & Charles W. Zaring, and Jack R. Kirchik, all of Miami, for cross defendant in error.

OPINION

DAVIS Chief Justice.

This is the second appearance of this case in this court. A previously entered judgment for defendant below was by this court reversed in Wolfe v. City of Miami, 103 Fla 774, 134 So. 539, 137 So. 892. Upon a retrial of the issues of the case after remand verdict for the defendant below was again returned. Thereafter an order awarding plaintiff below a new trial was entered by the trial court. From this order granting plaintiff below a new trial, writ of error was sued out by the aggrieved party defendant under authority of section 4615, Comp. Gen. Laws, section 2905, Rev. Gen. St. Thereafter the plaintiff below sued out a cross writ of error and assigned cross-errors thereon. So the proposition now before this court is this:

Where plaintiff in court below filed a common-law action against a city for damages for personal injuries and the verdict of the jury was for the defendant city, but on motion of plaintiff below a new trial was granted, can the plaintiff below, who is made a defendant in error to a writ of error sued out by the city to review the order granting a new trial, himself sue out a writ of error and by that procedure bring before the Supreme Court for determination, alleged prejudicial errors committed against plaintiff below by the trial judge during the progress of the trial, which alleged errors, it is contended, caused the jury's verdict for the defendant which verdict (so erroneously influenced) the trial judge has, by his order granting plaintiff a new trial, set aside?

In a broad sense it may be said that the appellate jurisdiction of the Supreme Court attaches to every cause at law or in equity filed in the circuit court eo instanti the filing. This is so, because the moment such a suit is commenced, the power and right of the Supreme Court to ultimately review the proceedings in it are vested in the appellate court.

But in the great majority of cases, it is only by an appeal or by a writ of error, which challenges the final decision in the case, that any of the proceedings of the circuit court in it may be actually reviewed. And ordinarily, except as provided by statute, it is only in cases wherein the subordinate courts have attempted to evade the jurisdiction of the appellate courts by preventing the exercise of their appellate jurisdiction, through destroying or making ineffectual the right of the successful party to review their rulings, ^[1] that the acts, rulings, or orders of the inferior courts can be reviewed and corrected other than by appeal or writ of error from the final judgment or decree. Barber Asphalt Pav. Co. v. Morris, 132 F. 945, text 953, 66 C. C. A. 55, 67 L. R. A. 761.

In this state, in law cases, writs of error lie only to final judgments except where otherwise provided by statute. Statutory exceptions to the general rule are those authorizing reviews of orders of nonsuit, with bill of exceptions (section 4617, Comp. Gen. Laws, section 2907, Rev. Gen. St.); permitting writs of error to be prosecuted by the party 'aggrieved' by an order granting a new trial at law; permitting writs of error to a rule of court or other summary order to officers requiring the payment of money or other thing, when it operates as a judgment against the party to whom directed (section 4607, Comp. Gen. Laws, section 2902, Rev. Gen. St.). In all other cases writs of error lie only from final judgments. Section 4606, Comp. Gen. Laws, section 2901, Rev. Gen. St.

In this case the determining factor is not whether or not the plaintiff below can prosecute a writ of error to reverse her own judgment. This is so because she asks no reversal of the order granting her a new trial, which is the sole basis for the writ of error that brought the case here in the first instance. Consequently what was said in Ward & May v. Bull, 1 Fla. 271; Hale v. Crowell, 2 Fla. 534, 50 Am. Dec. 301; Lovett v. Lovett, 93 Fla. 611, 112 So. 768; Zigler v. Erler Corp., 102 Fla. 981, 136 So. 718; State Road Dept. v. Zetrouer, 105 Fla. 650, 142 So. 217, concerning the right of a litigant to appeal from a judgment in his favor to correct a prejudicial error committed in connection with that judgment, is not in point on the proposition we are now called on to decide.

In this case the principal writ of error is directed under the statute solely to the order granting the opposite party a new trial. It can be prosecuted under the statute which authorizes it, only as an exception to the general rule. The general rule prohibits writs of error from any but final judgments in cases at law. Furthermore the statute confers the right to a writ of error to an order granting a new trial at law, solely to the 'party aggrieved' by the order appealed from, and to no one else. The object of the statute was obviously to permit the form and substance of what transpires on an earlier trial, to...