Briefman v. Nash Senator Corp.

VINCENT C. GIBLIN, Circuit Judge.

The petitioner (for the purpose of procuring a review by this court of the proceedings in litigation between the parties which culminated in the entry of a final judgment by the small claims court of the fifth justice of the peace district of Dade County) seeks the issuance by this court of the common law writ of certiorari.

The function of the writ of certiorari is to require an inferior court to transmit the record to the superior court in order that it may be determined from the face of the record whether the inferior court has exceeded its jurisdiction or deviated from the essential requirements of the law. The writ is not to take the place of an appeal where an appeal is allowable.

The petition under consideration does not make it appear that the inferior court exceeded its jurisdiction or deviated from the essential requirements of the law in considering and deciding the litigation in which the challenged judgment was entered. It is obvious, I think, that the petitioner seeks a correction of errors which the court below had the jurisdiction to commit.

It is my view that certiorari does not lie and that the remedy which the petitioner should have invoked was an appeal. See section 59.01, Florida Statutes 1951.

The method of taking an appeal is prescribed by the statute (section 59.01). The filing of a notice of appeal is a jurisdictional prerequisite. None was filed.

The petitioner asks that its petition be considered “as an appeal” if this court should decide (as it has) that certiorari does not lie. This court is not authorized to treat the petition as an appeal. To do so would supply the jurisdictional deficiency for which the petitioner is responsible. If it was in doubt as to the appropriate remedy, it should have filed a notice of appeal and taken the procedural steps prescribed for the perfection of the appeal, and, in the exercise of precaution, should also have petitioned for a writ of certiorari.

Because of the views expressed, the petition is denied and the cause is dismissed.