THE STATE OF FLORIDA EX REL. FRANK J. PEPPER, RELATOR,
v.
H. F. ATKINSON, CIRCUIT JUDGE, ET AL., RESPONDENTS
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The Florida Supreme Court denied a petition for a writ of prohibition challenging a circuit court's denial of a motion to quash a writ of error. The court held that a defendant in error who enters a special appearance cannot challenge the validity of the writ of error itself; special appearances are only effective to challenge service of process.
A special appearance is effective only to challenge service of process on the defendant in error and cannot be used to challenge the validity of the writ of error itself. Therefore, the circuit court properly denied the motion to quash the writ of error.
“Special appearances can be of avail to a defendant in error only when a motion to quash or dismiss challenges the service of process on the defendant in error, and not when the grounds of a motion to quash or dismiss refer to the writ of error.”
Establishes the core holding that special appearances are limited to challenging service of process and cannot be used to attack the writ of error itself
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Join FLexlaw to unlock all legal intelligenceIn a civil action in Dade County's Civil Court of Record, a final judgment for defendant was rendered on May 29, 1929. The plaintiff obtained a writ o…
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Whitfield, J.
In an action at law in the Civil Court of Record for Dade County a final judgment for defendant on demurrer was rendered May 29, 1929. The plaintiff took writ of error to the circuit court dated August 12, 1929, returnable September 16, 1929. A scire facias ad audiendum errores was issued August 12, 1929, returnable September 16, 1929. The scire facias was served August 28, 1929. On September 17, 1929, the defendant in error entered a “special appearance” in the circuit court and moved “to quash the writ of error and dismiss same” on a ground that the writ of error is made returnable less than twenty-five days from the time of the service of the scire facias. The circuit judge denied the motion to dismiss the writ of error. The. defendant in error as relator here prays for a writ of prohibition to prohibit the circuit court “from exercising any further jurisdiction” in the cause.
Section 11, Chapter 11357, Acts Extraordinary Session 1925, Section 5166, Comp. Gen. Laws 1927, provides that:
‘ ‘ The circuit courts shall have appellate jurisdiction in all cases decided by such civil courts of record in the same manner and with the same limitations as in writs of error from the circuit court to the Supreme Court. ’ ’
Section 2912, Rev. Gen. Stats. 1920, Sec. 4622, Comp. Gen. Laws 1927, provides that:
“In all cases except where the writ of error lies into the Supreme Court the clerk, or judge if there be no clerk, issuing the said writ of error shall issue to the defendant in error a scire facias to hear errors, which shall be made returnable with the said writ of error, and shall be served twenty-five days before the return day. ’ ’
In this case it is not necessary to determine whether, notwithstanding the last quoted statute, the statute first above quoted dispenses with the issuance and service of a writ of scire facias ad audiendum errores on writs of error taken to the circuit court from the civil court of record under Chapter 11357, Acts 1925, extra session.
The defendant in error moved to quash, not the service of the scire facias, but the writ of error, which operated as a general appearance in the cause in the circuit court, and the motion to quash and dismiss was for that reason properly denied. Special appearances can be of avail to a defendant in error only when a motion to quash or dismiss challenges the service of process on the defendant in error, and not when the grounds of a motion to quash or dismiss refer to the writ of error. Garner v. Garner, 83 Fla. 143, 90 So. R. 819; Lonergan v. Peebles, 74 Fla. 123, 76 So. R. 694; Casper v. Bonbright, 94 Fla. 1237, 115 So. R. 540; Seaboard Realty Co. v. Seaboard-All Florida Ry., 91 Fla. 670, 108 So. R. 675; Oppenheimer v. Guekenheimer, 34 Fla. 13, 15 So. R. 670; First National Bank v. Board of Public Instruction, 93 Fla. 182, text 192, 111 So. R. 521.
Writ of prohibition denied.
Terrell, C. J., and Ellis, Strum, Brown and Buford, J. J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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The City of Coral Gables v. Certain Lands Upon Which Taxes Are Delinquent, 110 Fla. 189 (Fla. 1933)…and judgments in the cases of Ortell v. Ortell, 91 Fla. 50, 107 Sou. 442; Capper et al. v. Bonbright et al., 94 Fla. 1237, 115 Sou. 540; First National Bank v. Board of Public Instruction, 93 Fla. 182, 111 Sou. 521; State ex rel. Pepper v. Atkison, 98 Fla. 996, 124 Sou. 458; and cases there cited. This case presents no question concerning the validity of the assessment and levy of the creation of' the lien by the proper procedure on the part of the taxing officials. We are asked to consider and deal only…
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Gilhart v. Gilhart, 155 Fla. 562 (Fla. 1945)…15 So. 540; City of Coral Gables v. Certain Lands, 110 Fla. 189, 149 So. 36; Ortell v. Ortell, 91 Fla. 50, 107 So. 442; First Nat. Bank of Gainesville [*565] v. Board of Public Instruction, 93 Fla. 182, 111 So. 521; State ex rel. Pepper v. Atkinson, 98 Fla. 996, 124 So. 458. The special appearance and motion to quash present issues other than the issue of the jurisdiction of the court over the person of the defendants, and go to the merits of the controversy and the right of plaintiff to maintain the suit…
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Hill v. Barns, 103 Fla. 87 (Fla. 1931)…the motion to dismiss the writ of error being confined to matters affecting the jurisdiction of the court over the defendants in error, does not constitute a general appearance of the defendants in error in the appellate court. In State v. Atkinson, 98 Fla. 996, 124 So. 458, a ground of the motion to dismiss the writ of error related to the regularity of the writ of error itself and not solely to the service of a scire facias. The acceptance by counsel for the defendants in error of service of copies, of…
Authorities Cited
- Oppenheimer v. Guckenheimer, 34 Fla. 13 (Fla. 1894)
- Garner v. Garner, 83 Fla. 143 (Fla. 1922)
- Ex parte v. Seaboard All-Florida Railway, 91 Fla. 670 (Fla. 1926)
- Lonergan v. Peebles, 74 Fla. 123 (Fla. 1917)
- Casper v. Bonbright, 94 Fla. 1237 (Fla. 1928)
- The First Nat'l Bank of Gainesville v. The Bd. of Pub. Instruction for the Cnty. of Lafayette, 93 Fla. 182 (Fla. 1927)