49 Fla. 380 | Fla. | 1905
This is- a case of original jurisdiction. The alternative writ of mandamus issued . on ' behalf of the relator against the respondent alleges in substance that S. V. Duke was charged in .the mayor’s -court of the city of Gtónesville, Florida, with a violation of a municipal ordinance of said city; that upon the trial on January 30, 1903,' he was convicted, and by such court sentenced to pay a fine, and in
The respondent by counsel moved to quash the alternative writ of mandamus issued by this court on the following grounds, to-wit: “(1) That the said writ shows upon its face that no writ of eror “was issued from the Circuit Court to the municipal court of the city of Gainesville,
In the argument of the motion to quash counsel for the respondent conceded that all the grounds of the motion to dismiss the appeal taken from the mayor’s court to the Circuit Court were abandoned at the hearing of the motion, except the ground that no writ of error had been issued in the cause, and that the order of the judge dismissing the cause was made because no writ of error had been issued therein. This presents the question whether the issuance of a writ of error is essential to give the Circuit Court appellate jurisdiction of a judgment or sentence of a mayor’s court. Section 11 of Article 5 of the constitution'provides that the Circuit Courts “shall have final appellate jurisdiction * * * of judgments or sentences of any mayor’s court.” Chapter 4021 “an act regulating appeals from municipal and recorder’s courts in this State,” which took effect May 19, 1891, provides in section one, “that any person charged before and convicted in any municipal or recorder’s court, within this State, of .any offense, may appeal from the judgment of. such court to the Circuit Court of the county in which such conviction took place within thirty days of such conviction” provided a bond be* given “conditioned to prosecute his appeal.” The act further provides in section two,
It is contended for the respondent that as section 2969 of the Revised Statutes which became operative June 13, 1902, provides that “writs of error lie into the Circuit Court * * * from all final judgments and sentences of municipal courts,” and as the Revised Statutes do not provide for “appeals” to the Circuit Courts from judgments and sentences of municipal courts, the provisions of Chapter 4021 acts of 1891 allowing “appeals” from municipal courts to the Circuit Courts require a writ of error; and that unless a writ of error issues the Circuit Court has no appellate jurisdiction of a judgment or sentence of a municipal court. The argument is that, under the provisions of section one of Chapter 4055 laws of 1891, the act adopting the Revised Statutes, Chapter 4021 should “have full effect as if passed after the enactment of said revision,” and that the expression “in the same manner as now prescribed by law for appeals from the Circuit Court to the Supreme Court,” contained in the second section of Chapter 4021, relates to the law as it appears in the Revised Statutes providing for appellate proceedings in cases taken from the Circuit Courts to the Supreme Court by writs of error; and that consequently
The Revised Statutes became operative June 13, 1902, and section one of Chapter 4055 acts of 1891, adopting the Revised Statutes, provides that “statutes passed at this session of the legislature shall not be repealed or affected by said revision, but shall have full effect as if passed after the enactment of said revision, except those acts passed at this, session, which are amendatory of laws omitted from said revision.” Chapter 4021 acts of 1891 is not amendatory of any law omitted from the Revised Statutes, and consequently it is not “repealed or affected by said revision, but shall have full effect as if passed' after the enactment of said revision.” Section 2969 of the Revised Statutes which became operative June 13, 1892, provides that “writs of error lie into the Circuit Court * * * from all final judgments and sentences of municipal courts.” There is no provision in the Revised Statutes for ’’appeals” in such cases. Chapter 4021 acts of 1891 went into effect May 19, 1891. Section one of the act provides that any person charged before and convicted in any municipal or recorder’s .court, within this State, of any offense, may appeal from the judgment of such court to the Circuit Court of the county in which such conviction took place, within thirty days of such conviction; provided a bond be given “conditioned to prosecute his appeal;” and section two, recognized the right' so given, provides that "such appeals shall be taken to the Circuit Court by bill of exceptions within said thirty days,.in the same manner as now prescribed by law for •appeals from the Circuit Court to the Supreme Court.” The right to an “appeal” is secured by the first section of
The Revised Statutes became operative June 13, 1892, and section 2969 of the revision provides that “writs of error lie into the Circuit Court * * * from' all final judgments and sentences of municipal courts.” Whether this provision of the Revised Statutes gives to a person against whom a judgment is rendered in a mayor’s court a right to a writ of error in addition to the right of an appeal under Chapter 4021, it is not necessary here to determine. The Revised Statutes do not take from a person against whom a judgment is rendered iri a- municipal court the right to a review of such judgment by the Circuit Court by an appeal taken within thirty days, upop giving bond “conditioned to prosecute his appeal,” under Chapter 4021 acts of 1891. As the relator in this case had the right to a review of the judgment rendered against him in the mayor’s court, by an “appeal” to the
Another contention for the respondent is that the issuance of a writ of mandamus in this cause would be a review of his judicial discretion, which can properly be done only by appropriate appellate proceedings, the respondent claiming that he had assumed jurisdiction of the cause by entertaining and granting the motion to dismiss the appeal^ thus determining a question of practice only. It is conceded that the appeal was dismissed because no writ of error had been issued in the cause, and that the court held that the issuance of a writ of error was necessary to give the court jurisdiction of the appeal. A dismisal on the ground of the want of jurisdiction is not such an assumption of jurisdiction as to require its review by appellate proceedings. The dismissal of the appeal from the mayor’s court by the Circuit Court on the ground that a writ of error was necessary to give the Circuit Court jurisdiction was a denial that the court had jurisdiction when no writ of error had been issued in the cause. The contention that there is no final judgment of the mayor’s court from which the appeal was taken is not sustained by the writ and its exhibits.
It appears from what has been said that a writ of error was not essential to give the Circuit Court jurisdiction of
The motion to quash the alternative writ of mandamus issued in this cause is overruled. The respondent will have leave to file his return to the alternative writ within ten days.