32 Fla. 431 | Fla. | 1893
The alternative writ of mandamus was issued December 2nd, 1889. The endorsement of service is as follows : “Executed this 5th day of December, 1889, by serving a true copy of the within mandamus on David S. Walker. Circuit Judge. Joseph Wilkins, Sheriff Es. Co., FÍa.”
The sheriff of Escambia county was not at the time of the service of the writ the sheriff of this court, nor even ex-officio a deputy of our sheriff, as he is now under Section 1324 Rev. Stat.,'nor is there any evidence that he was ever deputized by our sheriff to make the service; therefore there is no legal evidence of service of the writ (Williams vs. Hutchinson, 26 Fla., 513, 7 South. Rep., 852; Gibbens vs. Pickett, 31 Fla., 147, 12 South Rep., 17; Tapping on Mandamus,
Upon motion to amend the return.
John H. Carter for motion.
The relator has moved to amend the return. Waiving the manifest insufficiency of the motion, and the question of the abatement of the proceeding, in view of the death of Judge Walker, the motion must be denied for the reason that a writ of error does not lie from the Circuit Court to review the judgment of a justice of the peace. The Constitution of 186S, as amended in 1875 (sec. 8 Art. YI), gave the Circuit Courts final appellate j urisdiction in all civil cases arising in a court of a justice of the peace where the amount or value of the property involved was $25 and upwards. An act of February 10th, 1877 (sec. 104, p. 650 McClellan’s Digest), provided that any party dissatisfied with a judgment of a justice of the peace might within ten days after the entry of the judgment appeal to the Circuit Court of the county, but to make his appeal effectual he or his agent or attorney should make and file with the justice an affidavit that he appeals in good faith, and not for the purpose of delay, and also file a specified agreement, signed by one or more sureties and conditioned, if the appeal should be
In our judgment it was the intention of the Legislature of 1877, and up to the act of 1885, if not to that of
The motion is denied.