Grodin v. Railway Express Agency , 116 Fla. 378 ( 1934 )

The Court did not overlook the point presented to the effect that the judgment of the Circuit Court reversing the judgment of the Civil Court of Record of Dade County was not determined within five months after the return day of the writ of error as undertaken to be required by Section 8 of Chapter 15666, Acts 1931, providing for the manner of review of appeals from the Civil Court of Record to the Circuit Court.

Assuming that it is competent for the Legislature to declare a fiat affirmance of particular judgments pending on appeal therefrom to an appellate court, merely because the appellate court has failed to declare its decision of the appeal submitted to it, within a specified statutory period allowed for the appellate court to take such judicial action, the procedure for enforcing compliance with such a statutory provision would be by mandamus to compel the appellate court to enter an affirmative order making the statutory affirmance a matter of record, and thereupon to remand the record in the appellate court to the court below for execution of the judgment as thus affirmed.

If after five months the appellate court whose judgment is attacked by certiorari in this case, had no jurisdiction other than to enter the fact of a statutory affirmance under Chapter 15666, supra, because the statute says the judgment of the Civil Court of Record shall stand automatically affirmed after a period of five months allowed to do otherwise, a point we deem unnecessary to decide until it is required to be decided in an appropriate proceeding, mandamus, not certiorari, should be sought to have the proper judgment entry made in the records of the appellate court. State, ex rel. The Dowling Co. v. Parks, 99 Fla. 1264, 128 Sou. Rep. 837.

Rehearing denied.

DAVIS, C. J., and WHITFIELD, TERRELL and BUFORD, J. J., concur.