MONTMARY, INC.,
v.
J. W. SANDERSON, ET AL.
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Montmary, Inc., sought certiorari review after its appeal to quiet title was dismissed due to a defective appeal notice. The Florida Supreme Court denied the writ, holding that certiorari is not available to review a circuit court decree on the merits when the appeal was dismissed for procedural defects and the underlying decree involved judicial determinations about evidence and notice.
The Court held that a writ of certiorari cannot be issued to review the circuit court decree. Even assuming the Court has power to issue certiorari after an appeal is dismissed for defects, certiorari is not available where the decree is based on judicial determination of evidence and involves no showing that the decree is illegal, void, necessarily and essentially erroneous, or resulted from non-compliance with essential requirements of law.
“Even if this Court may issue a writ of certiorari to review a decree of the circuit court, after an appeal from the decree had been dismissed because it was illegally entered and was under the laws of this State insufficient to invoke the appellate jurisdiction of this Court, the decree was rendered upon a judicial determination of the probative effect of the evidence”
Establishes that even assuming certiorari power exists after a defective appeal, the Court will not use it to review determinations of evidence.
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Join FLexlaw to unlock all legal intelligenceMontmary, Inc., as grantee, brought suit against the grantor and another party claiming a part interest in conveyed real estate. The trial court found…
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In a suit brought by the grantee in a deed of conveyance to quiet title to real estate, against the grantor and one claiming a part interest in the land under a later recorded instrument, it was found by the court, on substantial testimony, that the plaintiff grantee’s agent had notice that the grantor defendant owned only a part interest in the land conveyed to plaintiff, and that another defendant claimed or had an interest in the land conveyed to plaintiff. Relief was denied against the grantor defendant and the bill of complaint was dismissed as to the defendant claiming under a later recorded instrument a part interest in the *496land conveyed by. one defendant to the plaintiff. Plaintiff appealed from the decree.
The appeal was dismissed because it was entered December 22, 1938 and made returnable February 15, 1938, an impossible day, in violation of the statute. A writ of certiorari has been applied for, the statutory period for taking appeals having expired.
Even if this Court may issue a writ of certioari to- review a decree of the circuit court, after an appeal from the decree had been dismissed because it was illegally entered and was under the laws of this State insufficient to invoke the appellate -jurisdiction of this Court, the decree was rendered upon a judicial determination of' the probative effect of the evidence, including testimony adduced as to notice of plaintiff grantee’s agent when'the conveyance was made that the dismissed defendant had a claim or interest in the land conveyed by one of the defendants, and it is not shown that the decree is illegal or void, or necessarily and essentially erroneous, or that in rendering the decree the chancellor 'did not comply with the essential requirements of the law governing the issues in the case.
Therefore a writ of certiorari cannot properly be issued under the controlling law of this State.
Writ of certiorari denied.
Terrell, C. J., and Buford and Thomas, J. J., concur.
Whitfield, P. J., concurs in opinion and judgment.
Justices Brown and Chapman not participating as authorized by Section 4687, Compiled General Laws of 1927, and Rule 21-A of the Rules of this Court.