F. C. ROACH, CHIEF OF POLICE, PLAINTIFF IN ERROR,
v.
ARTHUR KEEP, DEFENDANT IN ERROR
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The Florida Supreme Court dismissed a writ of error in a habeas corpus case because the writ was issued by the Clerk of the Circuit Court without the required allowance by either the judge who heard the cause or a justice of the Supreme Court. The court held that such a writ is a nullity under Florida law.
A writ of error to a judgment in a habeas corpus proceeding issued by the Clerk of the Circuit Court without the allowance of either the judge who heard the cause or a justice of the Supreme Court is a nullity. Although the plaintiff in error was entitled to seek a writ of error, an order granting it by the proper authority is necessary under the statute.
“A writ of error to a judgment in a habeas corpus proceeding issued by the Clerk of the Circuit Court, without the allowance thereof- either by. the judge who heard the cause or by a justice of the Supreme Court, is a nullity.”
Establishes the core holding that writs of error must be allowed by proper judicial authority, not merely issued by the clerk
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Join FLexlaw to unlock all legal intelligenceThe Chief of Police sought a writ of error in habeas corpus proceedings in which the petitioner (Arthur Keep) was discharged from custody. The writ wa…
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Whitfield, J.
In habeas corpus proceedings the petitioner was discharged. The Chief of Police took writ of error to the judgment by filing a praecipe therefor with the Clerk of the Circuit Court who issued the writ. The statute provides that in habeas corpus proceedings “the judge hearing the cause, or a Justice of the Supreme Court shall grant to any party or person aggrieved by the judgment, including the. State of Florida, or any political sub-division thereof, or any officer of the State of Florida, or any county or municipality in said State, or any person, a writ of error returnable to the next term of the Supreme Court, or to the court in term, if the writ is applied for during the session of the court, which writ shall be heard and determined as other cases; and the trial of such writs of error shall have preference in the Supreme Court over all other cases. And such writs of error shall be granted in criminal as well as in civil cases, and from the review of judgments and orders discharging persons from custody -or arrest'1 upon any • criminal charge, as well as orders committing or remanding any such person to custody: Provided, however, That no such writ of error shall operate as a supersedeas in any criminal case to an order or judgment discharging persons from custody.” Sec. 2257 Gen. Stats. 1906; Compiled Laws, 1914. .
A writ of error to a judgment in a habeas corpus proceeding issued by the Clerk of the Circuit Court, without the allowance thereof-either by. the judge who heard the cause or by a justice of the Supreme Court, is a nullity. State ex rel. Porter v. Vinzant, 49 Fla. 130, 38 South. Rep. 366; Wright v. State, 32 Fla. 472, 14 South. Rep. 43; Hardee v. Brown, 56 Fla. 377, 47 South. Rep. 834, text 380.
While the plaintiff in error was entitled to a writ of error, an order granting it is necessary under the statute.
Dismissed. Browne, C. J., and Taylor, Shackleford and Ellis, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (13 total)
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W. B. Harbeson Lumber Co. v. Duncan L. Anderson and Anna Anderson, 102 Fla. 731 (Fla. 1931)…rong, or that the jury were not governed by the evidence. Welles v. Bryant, 68 Fla. 113, 66 So. 562. On the other hand a verdict without supporting evidence' will be set aside on proper motion. Florida Fire & Casualty Ins. Co. v. Hart, 73 Fla. 970, 75 So. 528; Petroutsa v. H. C. Shrader Co., 76 Fla. 574, 80 So. 486. Where there is conflicting evidence on the issues made and the verdict is not manifestly against the weight of the evidence, a new trial should not be granted for insufficiency of the eviden…
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State of Fla. Ex rel. Daisy Wilson v. Quigg, 154 Fla. 348 (Fla. 1944)…urt in such cases. So habeas corpus proceedings are in a somewhat different class from ordinary legal or equitable proceedings, as a reading of Chapter 79 of the Florida Statutes of 1941 will show. See in this connection Roach v. Heep, 73 Fla. 1048, 75 So. 528. The holding in that decision was complied with in this case, application for writ of error having been made to and allowed by the circuit judge under Section 5444 C.G.L., now 79.11 F. S. 1941, as contemplated by the proviso in said Rule 38, and was…
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Halie v. Wickersham, 103 Fla. 254 (Fla. 1931)…cause the evidence of a contingent or con [*261] ditional contract wholly fails to support an allegation of an absolute promissory agreement and the variance is fatal to a recovery. Wiggins v. Wilson, supra; F. F. & C. Ins. Co. v. Hart, 73 Fla. 970, 75 So. 528; Sulzner v. Price-Williams, 82 Fla. 199, 89 So. 540; Hinote v. Brigman, 44 Fla. 589, 33 So. 303; Foye Tie & Timber Co. v. Jackson, 86 Fla. 97, 97 So. 517; Tripp v. Wade, 82 Fla. 325, 89 So. 870. Since the direction of a verdict in the court below a…
Previewing 3 of 13 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Hardee v. Brown, 56 Fla. 377 (Fla. 1908)
- Wright v. State, 32 Fla. 472 (Fla. 1893)
- The State of Fla. ex rel. Frank S. Porter v. Vinzant, 49 Fla. 130 (Fla. 1905)