Opinion
March 24, 1950. Rehearing Denied April 18, 1950.
Smith, Fant Axtell, Jacksonville, for petitioner.
Daniel Poucher, Jacksonville, for respondent.
We have here a petition for certiorari to review a judgment of the Circuit Court of Duval County which affirmed a judgment of the Civil Court of Record of Duval County.
The alleged error, sought to be corrected, occurred in an action in the Civil Court of Record wherein a writ of garnishment was served upon petitioner. Petitioner answered in effect that — petitioner had a lien upon the funds by virtue of the following language in a note which it held made by defendant. "And for any other liabilities to said bank, whether due or not due, or hereafter arising, the undersigned also hereby gives to said bank a lien upon all property or securities given to or left in possession of the said bank by the undersigned, and also upon any balance of the deposit account of the undersigned with the said bank." The Civil Court of Record held against the lien and gave judgment against petitioner. This judgment was appealed to the Circuit Court and affirmed.
The only question which we consider is whether certiorari is available to review the alleged error.
Ordinarily we do not announce an opinion where certiorari is denied. In this instance we feel that an expression from us would be helpful to the bar. Under Section 5 of Article 5, Florida Constitution, F.S.A., we have no appellate jurisdiction of this case. The Circuit Court of Duval County, however, did have final appellate jurisdiction of the cause by virtue of Sec. 33.11, Fla. Stat. 1941, F.S.A., enacted pursuant to Section 11, Article 5, Florida Constitution. Further review if had in the Supreme Court must be by certiorari. This Court has the power to issue the writ within guarded discretion as set forth in numerous precedents. See Jacksonville T. K.W. Ry. Co. v. Antone Boy, 34 Fla. 389, 16 So. 290; Mutual Benefit Health Accident Ass'n v. Bunting, 133 Fla. 646, 183 So. 321, and cases therein cited.
The rule was long ago announced by us in Jacksonville T. K.W. Ry. Co. v. Antone Boy, supra [ 34 Fla. 389, 16 So. 291]. "* * * The office of the common-law certiorari, as declared by the Illinois court, is to have the entire record of the inferior court brought up for inspection, in order that the superior court may determine therefrom whether the inferior court had jurisdiction, or had exceeded its jurisdiction, or had failed to proceed according to the essential requirements of the law, where no appeal or other direct means of reviewing the proceeding is given. Donahue v. County of Will, 100 Ill. 94; Hyslop v. Finch, 99 Ill. 171. See, also, Wedel v. Green, 70 Mich. 642, 38 N.W. 638. A distinction is made by some courts between cases where the writ goes to inferior courts of record and cases where it goes to officers or boards exercising only quasi judicial powers in proceedings of a summary character out of the course of the common law. In the first class of cases it is held the record only can be examined to ascertain whether such courts have acted within the scope of their jurisdictional powers, while in the second the record will be examined not only to see whether such officers or boards have kept within their jurisdictional powers, but whether or not they have acted strictly according to law; and errors and irregularities committed by them will be corrected. * * *" While there have been many variations on the application of this rule, it has necessarily remained unaltered because of our Constitution. See also the general rule well stated in 10 Am.Jur., page 527.
Here no contention is made of a want of jurisdiction in either of the lower courts. Was there an illegality of procedure? Bear in mind that to justify the issuance of certiorari the announced rule refers to illegality of procedure, not an erroneous proceeding. In determining whether there exists a departure in the essential requirements of law we ascertain whether the court proceeded consistent with the basic principles of law relating to the procedure to guide to an ultimate determination of the cause.
If jurisdiction is not present in the court of original jurisdiction, then appeal to the Circuit Court would not suffice to prevent the review here by certiorari. The same is true if the Civil Court of Record proceeds in derogation of the essential requirements of law. On the other hand where jurisdiction was in the lower court and only errors were committed, the review by appeal in the Circuit Court was final. If peradventure it appears to some that the error was of sufficient magnitude as to cause a miscarriage of justice, it will still not justify the issuance of the writ to have further review because that would pit the judgment of the Supreme Court against that of the Circuit Court. The Constitution never contemplated or provided for that. In this class of cases we are concerned with the character of error instead of its degree.
As observed in the rule herein referred to a distinction is made whether review is sought to a judgment of a court and that of a board or officials exercising quasi judicial powers. In the former certiorari will only issue when there is a departure from the essential requirements of law whereas in the latter simple errors may be corrected. To avoid confusion we also call attention to our use of the writ of certiorari pursuant to our Rule 34. By this rule we entertain jurisdiction of all interlocutory orders in equity and are not limited to ascertain whether the essential requirements of law have been complied with but we review any and all harmful errors whether upon the evidence or otherwise.
For the reasons stated the petition is denied.
TERRELL, SEBRING and HOBSON, JJ., concur.
CHAPMAN and THOMAS, JJ., dissent.
ROBERTS, J., not participating.
I dissent because of the ruling in Reaves v. Domestic Finance Company, 113 Fla. 672, 152 So. 718.