Damguard v. Tunnicliffe

117 So. 898, 96 Fla. 347

• Court: Supreme Court of Florida
• Decided: July 30, 1928
• Status: Published

Opinion

Strum, J.

In a proceeding in mandamus, a final judgment was rendered in the court below quashing the alternative writ, assessing costs against the relator and dismissing the respondent without day. The relator has attempted to bring the cause- before this Court for review by causing to be filed and recorded in the Minute Book of the lower court a notice of entry of appeal in the form applicable to chancery causes, as prescribed by Sec. 3172, Rev. Gen. Stats. 1920; Sec. 4964, Comp. Gen. Laws, 1927.

Mandamus is an extraordinary common law remedy. If a review by this Court of a final judgment in mandamus is desirhd it should be brought here by appellate process appropriate to common law actions. Such judgment can not be brought to the Supreme Court for review by the filing and recording of a notice of entry of appeal. Such procedure is applicable only to chancery causes, and it not effective to invest this Court with appellate jurisdiction of either the subject matter of or the parties to a common law action. State ex rel. Martin v. Board of Commissioners of Hillsborough County, 80 Fla. 332, 86 So. R. 206; Hagan v. State ex rel. Williams, 85 Fla. 27, 95 So. R. 617.

A general appearance of the pax’ties in this Court does not cure the lack of jurisdiction of the subject matter, nor will Chap. 11890, Acts of 1927, avail to remedy the matter, since the deficiency here involved is not merely one of procedure, but is jurisdictional.

Dismissed.

Ellis, C. J., and Brown, J., concur. Wi-iitfield, P. J., and Terrell and Buford, J. J., concur in the opinion and judgment.