Davis v. Artley Construction Co. , 154 Fla. 481 ( 1944 )

I concur in the opinion prepared by Mr. Justice Chapman insofar as the same deals with the merits of the claim under consideration. I agree to the conclusion reached in that opinion that the appeal should not be dismissed, but for a different, or an additional, reason, viz:

In the case of Tigertail Quarries Inc., et al., v. Ward,154 Fla. 122, 16 So. 2d 812, in the majority and controlling opinion, it was said:

"The right of appeal from this administrative agency being a purely statutory privilege and not a constitutional right, it is subject to the limitations and restrictions imposed by the statutes which define and create the privilege. Unless the procedure provided by the statutes is substantially complied with (or unless, under the law, the jurisdictional pre-requisites to obtaining appellate jurisdiction may be, and are, waived as to the cause, or as to the parties, or as to both) the circuit court is without power to determine the controversy under appellate process."

In that case the point was raised and pressed in the circuit court by motion to dismiss the appeal. In the instant case the power of the circuit court was not questioned in that was raised court but for the first time in the Supreme Court.

When the appeal was filed in the circuit court the matter then became a case at law, (see South Atl. Steamship Co. v. Tatum, 139 Fla. 675, 190 So. 675) and subject to the Jurisdiction of the circuit court under the provisions of Section 11 of Article V of our Constitution. The appellee might have then presented timely motion to dismiss on the ground that appellant had failed to exhaust his remedy before the statutory administrative board but this it failed to do and, instead of pursuing that course, it submitted itself and the issues to the jurisdiction of the circuit court and thereby waived all irregularities as to procedure. Thus, this case falls within the exception pointed out in the Tigertail Quarries case as quoted, supra.