Carlton v. Johnson , 61 Fla. 13 ( 1911 )

Whitfield, C. J.

The defendants in error were on a writ of habeas corpus before the Circuit Judge discharged from the custody of the sheriff by whom they were held under a capias issued upon an information filed in the County Court for St. Lucie County. A writ of error was allowed by the Circuit Judge under section 2257 Gen. Stats, and was taken in the name of the Sheriff and made returnable to this court on April 11th, 1911. A scire facias issued in the cause was served only on W. W. Sykes, one of the defendants in error.

A motion is made to quash the writ of error and to strike the transcript of the record from the files here upon the ground, among others, that no scire facias or notice has been served in accordance with law.

Where a writ of error is taken in a habeas corpus case, the appellate court acquires jurisdiction over the person of the defendant in error only by the proper service of a writ of scire facias ad audiendum errores, or by a waiver or voluntary appearance in such court. Belch v. Manning, 55 Fla., 229, 46 South. Rep., 91; Hardee v. Brown, 56 Fla., 377, text 381, 47 South. Rep., 834; Moeller v. Stocker, 61 Fla., , 54 South. Rep., 591. The practice as to giving the required notice is within the discretion of the court. Tyler v. Painter, 16 Fla. 144. See also section 11, Art. 3 of the Constitution, as to the power of the Supreme Court to issue “all writs necessary or proper to the complete exercise of its jurisdiction.”

The writ of error transferred the cause to this court, hut only one of the defendants in error has been served with a scire facias. The habeas corpus proceeding involves the validity of statutes regulating the right to ñsh in the public waters of the State, and the Attorney General acting for the State has, in view of the interest and rights of the public in premises, made a motion that a sci/re facias be issued and served in this cause so as to bring all the defendants in error into this court. Therefore the Clerk of this court will issue a scire facias to be served by the sheriff of this court by deputy on all the clefendants in error, the scire facias to be made returnable Thursday, May 25th, 1911.

It is so ordered.

All concur.