D. S. CARLTON, AS SHERIFF, PLAINTIFF IN ERROR,
v.
PETER JOHNSON, FRANK WALLROUS, N. M. SYKES AND W. W. SYKES, DEFENDANTS IN ERROR
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The Florida Supreme Court addressed a procedural defect in a writ of error taken from a habeas corpus discharge. The court held that proper service of a scire facias on all defendants in error is necessary to vest appellate jurisdiction, and ordered that such service be effected on all parties before the case could proceed.
The appellate court acquires jurisdiction over the person of defendants in error only by proper service of a scire facias ad audiendum errores or by waiver/voluntary appearance. Service on only one defendant in error is insufficient; a scire facias must be served on all defendants in error to bring them before the court.
“Where a writ of error is taken in a habeas corpus case, the appellate court acquires jurisdiction over the person of the defendant in error only by the proper service of a writ of scire facias ad audiendum errores, or by a waiver or voluntary appearance in such court.”
Establishes the requirement for proper service to obtain appellate jurisdiction in habeas corpus cases
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Join FLexlaw to unlock all legal intelligenceDefendants in error obtained discharge from the sheriff's custody via habeas corpus before the Circuit Judge, where they had been held under a capias …
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Whitfield, C. J.
The defendants in error were on a writ of habeas corpus before the Circuit Judge discharged from the custody of the sheriff by whom they were held under a capias issued upon an information filed in the County Court for St. Lucie County. A writ of error was allowed by the Circuit Judge under section 2257 Gen. Stats, and was taken in the name of the Sheriff and made returnable to this court on April 11th, 1911. A scire facias issued in the cause was served only on W. W. Sykes, one of the defendants in error. A motion is made to quash the writ of error and to strike the transcript of the record from the files here upon the ground, among others, that no scire facias or notice has been served in accordance with law.
Where a writ of error is taken in a habeas corpus case, the appellate court acquires jurisdiction over the person of the defendant in error only by the proper service of a writ of scire facias ad audiendum errores, or by a waiver or voluntary appearance in such court. Belch v. Manning, 55 Fla., 229, 46 South. Rep., 91; Hardee v. Brown, 56 Fla., 377, text 381, 47 South. Rep., 834; Moeller v. Stocker, 61 Fla., , 54 South. Rep., 591. The practice as to giving the required notice is within the discretion of the court. Tyler v. Painter, 16 Fla. 144. See also section 11, Art. 3 of the Constitution, as to the power of the Supreme Court to issue “all writs necessary or proper to the complete exercise of its jurisdiction.”
The writ of error transferred the cause to this court, hut only one of the defendants in error has been served with a scire facias. The habeas corpus proceeding involves the validity of statutes regulating the right to ñsh in the public waters of the State, and the Attorney General acting for the State has, in view of the interest and rights of the public in premises, made a motion that a sci/re facias be issued and served in this cause so as to bring all the defendants in error into this court. Therefore the Clerk of this court will issue a scire facias to be served by the sheriff of this court by deputy on all the clefendants in error, the scire facias to be made returnable Thursday, May 25th, 1911.
It is so ordered.
All concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Jones v. State, 93 Fla. 603 (Fla. 1927)…s State, and that the Legislature may by valid general laws prescribe punishments and penalties for violations of such special or local laws. Snowden v. Brown, 60 Fla. 212, 53 So. 548; Harper v. Galloway, 58 Fla. 255, 51 So. 226; Carlton v. Johnson, 61 Fla. 13, 55 So. 79; State ex rel. v. Bryan, 99 So. 327; Stinson v. State, 63 Fla. 42, 58 So. 722. Section 1 of Chapter 10635 declares certain acts to be unlawful, and the general law attaches the penalty thereto, so that if Section 2 of the Act should [*606…
Authorities Cited
- Hardee v. Brown, 56 Fla. 377 (Fla. 1908)
- Tyler v. Painter, 16 Fla. 144 (Fla. 1877)
- Belch v. Frances Manning as prochein ami of Emma Manning, 55 Fla. 229 (Fla. 1908)