State ex rel. Pleasure v. McClellan , 25 Fla. 88 ( 1889 )

Raney, C. J.:

This is an application for a writ of prohibition.

The question before us is whether under the Constitution of 1868, as amended in 1875, the seventh section of the delinquent tenant act of 1881. (chapter 3248) is unconstitutional in so- far as it authorizes a trial de novo in the Circuit Court, of a case appealed to after trial by a County Judge. It was held by this court in 1884, in the case of State ex rel. vs. King, Circuit Judge, 20 Fla., 399, that the provision in question was unconstitutional.

Section 10 of Article X, the Judiciary Article, of the Constitution of 1868, as amended in 1875, provides, after giving County Judges the civil and criminal jurisdiction of Justices of the Peace, that they “ may also have jurisdiction of such proceedings relating to the forcibly entry or unlawful detention of lands and tenements, subject to the appellate jurisdiction of the Circuit Court, as may be provided by law.”

Section 8 of the same article provides that the Circuit Courts shall have “ original jurisdiction * * * of the action of forcible entry and unlawful detainer, and of actions involving the titles or the right of possession of real estate;” aud that “ they shall have appellate jurisdiction of matters pertaining to the probate jurisdiction and of the estates and interests of minors in the County Courts and of such other matters as may be provided by law.”

The fifth article of the Constitution of 1838 provided inter alia, as follows: The Supreme Court, except in cases otherwise directed by that instrument, shall have appellate jurisdiction only, which shall be co-extensive with the State, under such restrictions and regulations not repugnant to the Constitution as may from time to time be prescribed by law (section 2.) The Circuit Court shall have original jurisdiction in all matters, civil and criminal, within this State not otherwise excepted in this Constitution (section 6.) It also provided (section 10) for Justices of the Peace, and that they should “possess such jurisdiction as may be prescribed by law ; and that in cases tried before a Justice of the Peace the right of appeal shall be secured under such rules and regulations as may be prescribed by law.”

The Legislature haviug provided for appeals from trials by Justices of the Peace to the Circuit Court, and that on any such appeal being taken the case should be tried in the latter court “ anew upon its merits,” and without requiring written pleadings, it was contended in ex parte Henderson, 6 Fla., 279, that the Circuit Court had no power in view of the above grant of powers made by section 6 of Article Y of the Constitution to entertain or try a case so appealed, but that the duty belonged to the Supreme Court. The decisiou of the court was that “ the right of appeal ” in cases tried before Justices of the Peace, under the above tenth section of the fifth article of that Constitution, meant (p. 291) appeals involving trials de novo or anew upon the merits, which had been in use in the Territory under Legislative enactments, as far back as 1822. Of such a trial on appeal it is said, pp. 288, 289 : “ We do not concur in the opinion that the case of an appeal from a Justice of the Peace is a ease of appellate jurisdiction in the sense in which this term is used in the Constitution conferring it on this (the Supreme) Court. The fact is, it is of a mixed character, having but one ingredient of appellate power in that it has its origin in the inferior court, whilst in all other respects it is and from its commencement, as well by the Legislature as the courts, has been treated and regarded as if originally instituted in the Circuit Court, with the single exception that written pleadings are not required. The case is directed to be tried anew in the Circuit Court, and it is to be continued after judgment, until final execution. This undoubtedly is the exercise of original jurisdiction. There is no revision and correction of error of law merely, no remitting of the case below for further trial.” Again, on p. 291: “ Considered in this light we feel no difficulty in regarding the Constitution as having allusion to these statutes and designing their continuance, and in holding the case to be one of original jurisdiction.”

Assimilating the powers of the Circuit Court to those of the King’s Bench.in its general supervising control of inferior tribunals it was, however, also said that even if the power was appellate in its nature, it could, nevertheless, be exercised. •

Considering the fact that the original jurisdiction of the Circuit Court was concurrent with that of Justices of the Peace in any case involving not more than fifty dollars, McMillan & Campbell vs. Savage, 6 Fla., 748, it is clear that an appeal under the above system was nothing more than a transfer of the cause after trial to another tribunal where it was retried without regard to either the result of or to any proceeding in, the former trial, and the second trial was the exercise of original, and not of any supervisory jurisdiction. The case was carried to the Circuit Court1 for it to try as an original cause the same as if it had originated there.

Looking at the Constitution of 1865 we find nothing indicating any different intent, or different effect from that indicated by the former instrument. Article Y, sections 5, 9.

The Constitution of 1868, by section 8 of Article VII, gave to the Circuit Court original jurisdiction of the action of forcible entry and unlawful detainer. Its appellate jurisdiction as prescribed by this section does not include such actions. By section 11 of the same article the County Courts “ may have no-extensive jurisdiction with the Circuit Courts in cases of forcible entry and unlawful detention of real estate, subject to appeal to the Circuit Court.”

The doctrine of State ex rel. vs. King, Circuit Judge, supra, is that although the Circuit Court has original jurisdiction of the proceedings in question, its power in cases appealed from the County Judge is appellate only, and that it could not exercise original jurisdiction; citing State vs. Baker, 19 Fla., 19, and State vs. Vann, Ibid, 29, where it was held that on an appeal to a Circuit Court from a judgment of a Justice of the Peace a trial de novo is the exercise of original jurisdiction, and that the statute providing for such trials on such appeals was unconstitutional.

We have considered the question presented carefully and are unable to conclude that there is error in the conclusion reached by our predecessors in the case against Judge King It is clear that the Constitution of 1868, as amended in 1875, gave to the Circuit Court both an original and an appellate jurisdiction in cases of the character of the one before us, and we are unable to reach the conclusion that the language used in it, as shown at the outset of this opinion, does not exclude the idea that the appeal should be to the original jurisdiction of that court. Its natural meaning is that it should be to the appellate jurisdiction, and not to the same jurisdiction as that by which it could try the ease as a cause originally instituted in it. Under the Constitution of 1838 it was necessarily an appeal to the original jurisdiction of the Circuit Court. Though called an appeal or anything else, in trying the case the Circuit Court did so by the use of its original jurisdiction, put to such a use by the Legislature. It had no real appellate jurisdiction, as distinguished irom original, to be used; a"d wo may remark here that the Circuit Court, under the Constitution of 1868, as amended in 1875, did not. have the extensive powers supervisory of and controlling inferior tribunals, conceded to have been in the Circuit Court under the organic law of 1838, by the opinion in Ex-parte Henderson. They were chiefly if not exclusively in the Supreme Court. Section 5, Article VI; Singer Manufacturing Company, vs. Spratt, 20 Fla., 122; Sherlock vs. City of Jacksonville, 17 Fla., 93; State vs. Gleason, 12 Fla., 190.

Having in a preceding section a'iven the original jurisdiction indicated, to the Circuit Court, if it had not been the intention to exclude a retrial in the exercise of such jurisdiction the language quoted from section ten of the amendments of 1875 would not have been used, or, in other words, if it had intented to permit a retrial by such original jurisdiction the language referred to would not have been adopted.

The jurisdiction to try a proceeding relating to the forcible entry or unlawful detainer of lands, is a law jurisdiction ; and at law, barring the legislation as to trials de novo, such a thing as the introduction ‘of new evidence has not been permitted on either a writ of error, or on our law appeal. The same is true of appeals in equity. State courts have no admiralty jurisdiction, and the peculiar practice in that branch of jurisprudence cannot be invoked as in point.

The point before us was not made in any of the cases cited by counsel for respondents, except in that of Cavanaugh vs. Wright, 2 Nev., 166, and it does not change our convictions.

The demurrer to the suggestion will be overruled, with leave to ihe respondents to plead within twénty days.

It will be so ordered.