State ex rel. Duval Selph, vs. Enoch J. Vann, Judge of the Circuit Court, 19 Fla. 29

The Chief-Justice delivered the opinion of the court. The suggestion of Duval Selph gives this court to understand that in a certain action of replevin commenced by him against W. M. Ives, before a Justice of the Peace, in the county of Columbia,he recovered a judgment, from which an appeal was taken to the Circuit Court.

That the cause coming on to be heard the said Duval Selph moved to dismiss the appeal on the ground that no petition of appeal had been filed, nor citation issued, as required by law and the rules of the court, and because the Circuit Court has no jurisdiction to try the cause, except by the exercise of appellate jurisdiction, upon the record, and not de novo. The Judge overruled the motion, and decided that he would try the cause de novo, and continued the cause for that purpose. Relator prays that a writ of prohibition may be issued, directed to said Judge, commanding.

Iiim to desist from further proceeding in said cause by a trial de novo. The respondent answers that the laws confer upon the Circuit Courts the power to try causes appealed from Justices5 courts de novo upon issues of fact by a jury. This is substantially a demurrer to the suggestion. The questions presented are decided in the case of The State ex rel. Wallace against Judge Baker at the present term. The cause should be heard by the court on the appeal as upon a common law writ of error, if the appeal is regularly perfected.

The writ of prohibition is granted commanding the respondent to desist from further proceedings in said cause by trial de novo ; and, inasmuch as the ease is one involving public interest, and the respondent is a judicial officer of the State, the costs herein will be taxed against the State.