Opinion
No. H-431.
November 8, 1966. Rehearing Denied January 10, 1967.
Petition for review from the Circuit Court, Duval County, Marion W. Gooding, J.
Mathews, Osborne Ehrlich, and Bedell, Bedell, Dittmar Smith, Jacksonville, for petitioners.
Kurz, Toole, Martin, Booth Taylor, and Cox, Grissett Webb, Jacksonville, for respondent.
This is a petition for writ of certiorari to review an interlocutory order of the trial court in a condemnation case, finding that it was necessary for respondent to take a permanent crossing easement over the petitioners' tracks at grade level, rather than above grade by a bridge or elevated structure, as petitioners contended was proper.
At the threshold we are confronted with the jurisdictional problem as to whether the writ should be issued now to review this interlocutory order, or for review to await the final judgment after trial of the compensation issue. Petitioners urge that they will have no complete and adequate remedy by appeal after final judgment, for two reasons, firstly that they will have been put to great expense and inconvenience in the trial of the compensation issue if the finding of necessity should be reversed, and secondly that an appeal from the final judgment may not operate as a supersedeas in view of F.S. §§ 73.13 and 73.14, F.S.A.
As to the first of these contentions we denied certiorari to review a partial summary judgment in a condemnation suit which judgment settled all the preliminary issues, except compensation, in State Road Department v. Bainbridge, Fla.App., 171 So.2d 609, and said:
"As to the Road Department's contention that the said partial summary judgment does not conform to `the essential requirements of the law, which will cause material injury throughout the subsequent proceedings, for which remedy by appeal will be inadequate,' we are again unable to ascertain in what respect an appeal will be inadequate to remedy the injury, if any. Petitioners argue that if the judgment is allowed to stand, the trial will proceed on an erroneous theory; that testimony of expert witnesses will be taken at considerable expense; that the only remedy Petitioners would have upon reversal and retrial to recover the excess amounts would be to sue the Respondents for the recovery of such excess money; and that such a procedure would be `cumbersome at best and does not solve the problem which is presently pressing.' Petitioners further contend that the cost of retrying the case would be double; that instead of one trial there would be two trials; and all of this constitutes material injury for which remedy by appeal will be inadequate. The essence of Petitioners' position is that a retrial of this cause will be vexatious, expensive and burdensome — all of which could well be present in any interlocutory order entered in a common law action."
Except for certain language in City of Dania v. Central So. Florida Flood Con. Dist. (Fla.App.2d Dist.), 134 So.2d 848, which might be construed to the contrary, the courts have consistently refused to review such interlocutory orders by certiorari, unless there has actually been an order of taking. Gottlieb v. Town of Surfside, Fla.App., 115 So.2d 25. Petitioners contend that in Howard Johnson, Inc. of Fla. v. State Road Dept., Fla., 90 So.2d 306, the Supreme Court authorized the discretionary issuance of a writ to review an order such as the one in this case, but our examination of the record in Howard Johnson shows there was, in fact, an order of taking.
As to the question of supersedeas, we have no doubt as to our power and authority to issue all writs necessary or proper to the complete exercise of our jurisdiction, including stay orders on appeal. Chambers et al. v. St. Johns County, 94 Fla. 814, 114 So. 526. Thus petitioners have available a means to maintain the status quo after final judgment.
Accordingly, the petition for writ of certiorari is denied.
WIGGINTON, Acting C.J., and JOHNSON and SACK, JJ., concur.
ON PETITION FOR REHEARING
By their petition for rehearing the petitioners herein have urged reconsideration of our decision denying the writ of certiorari on the ground that it is in conflict with the decision rendered by the Second District Court of Appeal in City of Dania v. Central So. Florida Flood Control District.
City of Dania v. Central So. Florida Flood Control District (Fla.App. 1961), 134 So.2d 848.
In our opinion filed herein we acknowledged that there was certain language in the City of Dania case which might be construed to be contrary to the conclusion which we have reached in the case sub judice. It must be borne in mind, however, that certiorari is a prerogative writ which is granted or withheld in the exercise of a sound judicial discretion. It is our view that extreme caution should be exercised in determining whether the writ should issue when its purpose is to seek review of an interlocutory order entered in an action at law, the effect of which will be to stay further proceedings in the trial court until the certiorari proceedings have been finally concluded in the reviewing court. We are committed to the proposition that under these circumstances the writ should never issue where the petitioning party will have a full, complete and adequate remedy by appeal after final judgment, as was found to be the situation in the case now before us.
We are inclined to adhere to the philosophy expressed by this court in Board of Commissioners of State Institutions v. Tallahassee Bank Trust Company where, in denying an application for a constitutional stay writ pending review of an interlocutory order entered in an eminent domain proceeding, we said:
Board of Commissioners of State Institutions v. Tallahassee Bank Trust Company (Fla. App. 1958), 101 So.2d 411, 412.
"* * * In the orderly process for the administration of justice appellate courts should cautiously avoid intrusion and encroachment upon the trial jurisdiction of the circuit court. It is not the function of an appellate court to inject itself into the middle of a lawsuit and undertake to direct the trial judge in the conduct of the case."
For the reasons herein stated, the petition for rehearing is denied.
WIGGINTON, Acting Chief Judge, JOHNSON and SACK, JJ., concur.