CLAYTON MAPOLES AND BEN HENRY POOLEY, PETITIONERS,
v.
J. C. WILSON, RESPONDENT

Fla. 1st DCA | 1960-06-21
No. C-17
WIGGINTON, C. J., and CARROLL, DONALD K., J., concur.
122 So. 2d 249 Florida District Court of Appeal, First District (1960) Positive Treatment
Cited by 26 cases

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Holding

The court held that it lacked jurisdiction to review the interlocutory order denying the motion to dismiss by writ of certiorari, as an interlocutory appeal was the proper avenue for review under the Florida Appellate Rules.


Facts & Procedural History

Defendants, residents of Santa Rosa County, sought to dismiss a libel action filed against them in Escambia County, asserting improper venue under Sec…

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Opinion of the Court
STURGIS, Judge.

STURGIS, Judge.

This cause comes before this court on a petition of the defendants in an action for libel, who seek by way of certiorari to have reviewed an order of the trial court denying their motion to dismiss the complaint, based on Section 46.01, Florida Statutes, F.S.A., relating to venue in actions against corporations.

The action was commenced in Escambia County against the defendant-petitioners, who are admittedly residents of and own and operate a radio station that is located in Santa Rosa County, from which the alleged defamatory statements were broadcast.

As in Fort v. Fort, Fla.App.1958, 104 So.2d 69, we are immediately confronted with the question of whether this court has jurisdiction to review by certiorari the interlocutory order under assault. In the Fort case we adhered to the fundamental rule that the common-law writ of certiorari lies only in those cases in which it clearly appears that there is no other full, adequate and complete remedy available to the petitioner. The reference there was to the writ as afforded under Article V, § 5(3), Const, of Fla., F.S.A. The reference also applied to F.S. 59.45, F.S.A., which statute permits-an appeal improvidently taken to be treated as a petition for writ of certiorari but. does not authorize certiorari improvidently applied for to be treated as an appeal. Bartow Growers Processing Corp. v. Florida Growers Processing Co-op., Fla. 1954, 71 So. 2d 165. Although the decision in the Fort case involved a post-decretal order, the-same principles of law are applicable where-certiorari is invoked to review an interlocutory order in an action at common law relating to venue as here involved.

The instant petition for writ of certiorari asserts that it is founded on art. V, § 5(3), Constitution of Florida,1 and' Rule 4.5, subd. c, Florida Appellate Rules, 31 F.S.A. While that rule relates to cer-tiorari, it does not purport to define the-legal basis for the writ. The power of this court to issue the common-law writ of certiorari derives from the last sentence of the cited constitutional provision, but that power is circumscribed by the above stated rule governing the court in issuing the writ.

However, the prohibition against the assumption by this court of jurisdiction in-those instances where certiorari instead of interlocutory appeal is improvidently relied upon as a vehicle for review is more directly found in the limitations of Rule 4.2, Florida Appellate Rules, as promulgated *251pursuant to the first two paragraphs of the cited subsection of the constitution. Footnote 1. It will be noted therefrom that appeals to the district courts of appeal lie, "“as a matter of right”, from final orders or decrees emanating from certain specified courts in certain limited classes of litigation, and “from all final judgments or decrees except those from which appeals may be taken direct to the supreme court or to a circuit court,” subj ect to this exception: “The supreme court * * * may provide for review by such courts of interlocutory orders or decrees in matters reviewable by the district courts of appeal.” Acting upon that specific and limited grant of power, the supreme court promulgated Rule 4.2, Florida Appellate Rules, authorizing interlocutory appeals in limited areas and prescribing the mechanics therefor. The pertinent part of subdivision “a” of the rule authorizes an appeal from an interlocutory order “at common law relating to venue or jurisdiction over the person,” and contains a proviso preserving the right of review of such orders on an appeal from the final judgment. Thus our disposition of this petition for certiorari will have no bearing on the merits of the question of venue if properly presented by an appeal from a final judgment.

The limitation imposed by F.A.R. 4.2, subd. a on appeals from interlocutory orders in actions at law is to be strictly construed against an enlargement of the right of interlocutory appeal and is jurisdictional. For related cases see Pullman Co. v. Fleishel, Fla.App.1958, 101 So.2d 188; Shaw v. Hill, Fla.App.1959, 114 So.2d 721; Strazzulla v. Hinson, Fla.App.1959, 113 So.2d 419; Jones v. Johnson, Fla.App.1957, 98 So.2d 506.

Although the question of this court’s jurisdiction was not raised by the parties, it is a matter of primary concern to which we must address ourselves sua sponte when any doubt exists. Finding that jurisdiction of this court is lacking, the petition for writ of certiorari is denied.

WIGGINTON, C. J., and CARROLL, DONALD K., J., concur.


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Citator

Cited By (15 total)

  • Polk Cnty. v. Sofka, 702 So. 2d 1243 (Fla. 1997)
    …132 Feet v. City of Orlando, 80 Fla. 233, 239, 86 So. 197, 198-99 (1920). This is because the limits of a court’s jurisdiction are of “primary concern,” requiring the court to address the issue “sua sponte when any doubt exists.” Mapoles v. Wilson, 122 So. 2d 249, 251 (Fla. 1st DCA 1960). Thus, while the resulting “waste of judicial resources” is regrettable, in the absence of jurisdiction, it is unavoidable. We quash the decision of the district court and remand with directions that the district court dism…
  • Dade Cnty. v. Hilton Carr, 231 So. 2d 844 (Fla. 3d DCA 1970)
    …the Special Acting State Attorney. See Robinson v. State, Fla.1961, 132 So. 2d 3; Janet Realty Corporation v. Hoffman’s, Inc., 154 Fla. 144, 17 So. 2d 114; State ex rel. Landis v. Crawford, 104 Fla. 440, 140 So. 333; Mapoles v. Wilson, Fla.App.1960, 122 So. 2d 249. It is necessary for the petitioner to demonstrate that the lower court departed from the essential requirements of law. The petitioner, to fulfill such a prerequisite, contends that the Criminal Court never had jurisdiction over the persons or pro…
  • State of Fla. Dep't OF Env't Prot. v. Garcia, 99 So. 3d 539 (Fla. 3d DCA 1989)
    …132 Feet v. City of Orlando, 80 Fla. 233, 239, 86 So. 197, 198-99 (1920). This is because the limits of a court’s jurisdiction are of “primary concern,” requiring the court to address the issue “sua sponte when any doubt exists.” Mapoles v. Wilson, 122 So. 2d 249, 251 (Fla. 1st DCA 1960). Thus, while the resulting “waste of judicial resources” is regrettable, in the absence of jurisdiction, it is unavoidable. Id. at 1245 (emphasis added). The Florida Declaratory Judgment Act, chapter 86, Florida Statutes (…
    1 / 2

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