JACK DAVIS, TRADING AND DOING BUSINESS AS JACK DAVIS MOTORS,
v.
THE FIRST NATIONAL BANK OF MIAMI, AT MIAMI, FLORIDA
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The Florida Supreme Court denied a petition for certiorari because the circuit court's judgment was merely a reversal, not a final judgment, and thus not reviewable by certiorari. The court noted that res judicata, while potentially inferable as not being a demurrer issue, should be raised by plea.
No, a judgment of reversal by a circuit court that is not a final judgment in the cause is not reviewable by certiorari. Res judicata, if applicable, should be raised by plea, not demurrer.
“we denied petition for certiorari because the judgment of the circuit court review of which was sought, was merely a judgment of reversal and did not constitute a final judgment in the cause.”
Establishes the primary reason for denying certiorari.
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On November 22, 1943 we denied petition for certiorari because the judgment of the circuit court review of which was sought, was merely a judgment of reversal and did not constitute a final judgment in the cause. See Rifas v. Gross, 106 Fla. 708, 143 So. 600; Kroier v. Kroier, 95 Fla. 865, 116 So. 753, 755; First National Bank v. Gibbs, 78 Fla. 118, 82 So. 618; Waddell v. McAllister, 97 Fla. 1054, 122 So. 578; Robinson v. Miami, 138 Fla. 696, 190 So. 35. Nor does the judgment of the circuit court fall within the purview of the exception to the rule stated in Midland Motor Car Co. v. Willys Overland, 101 Fla. 837, 132 So. 692. This is true because the judgment of the circuit court makes no determination of the question of res adjudicata, though it. may inferentially appear that the circuit court held that such may not be presented by demurrer. ■ Res adjudicata may be raised by plea. So it appears that petition for certiorari was properly denied.
Petition for rehearing denied.
BROWN, THOMAS and SEBRING, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Hauser v. Hauser, 93 So. 2d 865 (Fla. 1957)…of a Circuit Court acting as an intermediate appellate court, which merely reverses the judgment of an inferior court, is not a final judgment that will support review by certiorari in this Court. See Davis v. First Nat. Bank of Miami, 153 Fla. 864, 16 So. 2d 46, and cases there cited. We recognize one exception to this rule in a situation where the judgment of the Circuit Court reverses the judgment of an inferior court in such fashion and with such directions that would require the inferior court to proce…
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Roberts v. S. Seas Hotel, Inc., 64 So. 2d 314 (Fla. 1953)…ear, however, that unless and until the circuit -court enters an order or judgment that has the effect of determining the cause finally, a cer-tiorari proceeding in this court is not open to the petitioner. See Davis v. First National Bank of Miami, 153 Fla. 864, 16 So. 2d 46; Perlman v. Ryden, 131 Fla. 66, 178 So. 911. Accordingly, the motion to dismiss the certiorari proceeding should be granted. It is so ordered. TERRELL, Acting Chief Justice, and ROBERTS and MATHEWS, JJ., -concur.…
Authorities Cited
- First Nat'l Bank of Gainesville v. Gibbs, 78 Fla. 118 (Fla. 1919)
- Kroier v. Kroier, 95 Fla. 865 (Fla. 1928)
- Midland Motor Car Co. v. Willys-Overland, Inc., 132 So. 692 (Fla. 1931)
- Robinson v. City of Miami, 138 Fla. 696 (Fla. 1939)
- Rifas v. Gross, 106 Fla. 708 (Fla. 1932)
- Waddell v. McAllister, 97 Fla. 1054 (Fla. 1929)