39 Fla. 388 | Fla. | 1897
On motions of the defendant in error in these two causes this court, by its judgment and opinion filed on October 13th, during the last term, dismissed the writs of error therein upon the ground that all of the errors assigned were predicated upon the original affidavits for attachment filed in said causes and upon the traverse affi davits filed therein by the defendant below, and that the transcripts of the record filed here did not so certify or exhibit such affidavits as that they could be recognized or considered by the court. That as such affidavits constituted a part of the record proper in the cause, they could be authoritatively evidenced to this court only by the certificate of the cleric of the court below who toas the custodian of them, and that as they were exhibited in such transcripts only as part of bills of exceptions certified by the judge of the court below, this court could not properly recognize or consider them; and, therefore, because the records filed here did not exhibit any of the matters assigned as error in such manner as that this court was authorized to recognize or consider them, the causes were dismissed. Prior to the presentation of these motions by the defendant in error for the dismissal of said causes the plaintiff in error had filed
On December 11, 1896, after the denial of the applications for rehearing and reinstatement of said causes, they were remitted to the court below by mandates of this court. Row, on December 30,1896, after the denial of the former application for rehearing ánd reinstatement of said causes, and for leave to suggest diminution in the records therein and for certiorari to supplement such records, the plaintiff in error makes its second application in said causes for recall of the mandates therein, and for reinstatement of said causes, and for certiorari to supply the defective records therein upon the following grounds: Eirst. Because the court has power to do it. Second. Because it is its duty to do it for the reasons hereinafter stated. Third. Because petitioner has been denied justice within the meaning of the fourth section of the Bill of
This application the court, in obedience to well established rules and pi’ecedents, feels obliged also to deny, but does so with reluctance: First, because, even if the causes were reinstated, rule 15 of our rules of practice would prohibit the granting of certiorari to perfect the records. The court, equally with suitors, is bound by its rules, and they must be construed as statutes would be construed. Hanson vs. McCue, 43 Cal. 178. Second, because a second application for the rehearing of a cause in this court by the same party, and upon the same grounds as a former application that has been considered and denied, is not permissible, and can not properly be entertained. Garrick vs. Chamberlain, 100 Ill. 476; Coates vs. Cunningham, Ibid, 463; Smith vs. Dennison, 101 Ill. 657. Third; because the mandate of this court having been regularly issued and sent to and filed in the court below in said causes, this court has no further jurisdiction to grant a rehearing or other relief therein. Grogan & Lent vs. Ruckle, 1 Cal. 193; In re Jessup, 81 Cal. 408, text 467, 21 Pac. Rep. 976, 22 Pac. Rep. 742, 1028; Browder vs. McArthur, 7 Wheat. 58; Atkinson vs. Richardson, 14 Wis. 157; Sullivan vs. Speights, 14 So. Ca. 358; Caldwell vs. Bruggerman, 8 Minn. 286; Delaplaine vs. Bergen, 7 Hill, 591; Martin vs. Wilson, 1 N. Y. 240; Legg vs. Overbagh, 4 Wend. 188, S. C. 21 Am. Dec. 115. Horne vs. Carter’s Admrs., 20 Fla.
In the application under consideration it is contended that this court should, sua aponte, have ordered certiorari to perfect the defective records. The law is well settled, not only by our rules of practice in force, as before stated, since June, 1873, but by the adjudications of the courts, that a writ of certiorari to correct a record does not issue as a matter of right, but is awarded upon application properly and seasonably made therefor, which application must be supported by evidence showing that the record is defective.
State vs. Orrick, 106 Mo. 111, 17 S. W. Rep. 176, 329. The common law rule, followed in some of the American courts, was that an appellate court might, sua motu, award a certiorari to inform its conscience, for the purpose of affirming a judgment, but never to reverse it, or make error. Where a reversal is sought, the application for certiorari to perfect a record must-come from the party seeking reversal, and must be supported by affidavit of diminution in the record. 2 Tidd’s Prac. 1174; Franklin and Reeves, Rep. temp. Hardw. 118, S. C. 2 Str. 1023; Kesler vs. Myers, 41 Ind. 543, text 555; Bell vs. Bell, 4 La. 470; Curry vs. Woodward, 50 Ala. 258: In the case last cited it is. said that “a certiorari from this court will not be-awarded, at the instance of the appellant, to bring up pleadings which appear to have been omitted from the transcript, without any showing as to the contents of' the omitted pleadings, or the time when the appellant discovered the defects of the transcript, or the diligence exercised by him in attempting to cure them.” Mullary vs. Caskaden, 1 Minor, 20; Stibbins vs. Butler, Ibid, 121; Adams & Knapp, vs. Horsefield, 14 Ala.
The original defects and omissions in the records in these causes, it appears, were not occasioned by any neglect or blunder of the clerk below in making them up, as the same are made up according to the written directions of counsel for the plaintiff in error. Such papers being included therein as were directed to be included, and those are omitted that were directed to be omitted. ISTo application was made to the court to supplement the records until after the time had passed when such applications could, under the rules, be entertained or granted. An application for a rehearing ■of such application was made, duly considered, and properly denied. This second application for the same relief is irregular and must be denied, and it is so ordered.