Diamond Berk Insurance Agency, Inc. v. Goldstein

100 So. 2d 420 (1958)

DIAMOND BERK INSURANCE AGENCY, INC., Petitioner, v. Sam A. GOLDSTEIN et al., Respondents.

Supreme Court of Florida.

February 5, 1958.

French & Skolnick, Miami, for petitioner.

Aronovitz, Aronovitz & Haverfield, Miami, for respondents.

DREW, Justice.

Petitioner seeks to review an order of the District Court of Appeal denying its motion to dismiss, because of lack of jurisdiction, the appeal of respondents from an adverse judgment in the trial court.

Whether this Court has the power under amended Article V of the Constitution, F.S.A., to decide the correctness or propriety of an order of this nature under the limited authority granted in the aforesaid Article, § 4, authorizing us to "* * * review by certiorari any decision of a district court of appeal that [1] affects a class of constitutional *421 or state officers, or [2] that passes upon a question certified by the district court of appeal to be of great public interest, or [3] that is in direct conflict with a decision of another district court of appeal or of the supreme court on the same point of law. * * *" (Emphasis supplied.) is, for reasons hereafter pointed out, not necessary to the disposition of this cause, and therefore is not decided. It is not inappropriate to observe, however, that under the constitutional plan the powers of this Court to review decisions of the district courts of appeal are limited and proscribed.

Turning now to the problem at hand, the unsuccessful litigants in the trial court filed their notice of appeal in the district court instead of in the trial court. This, adversaries argue, does not give the district court of appeal jurisdiction of the cause (Counne v. Saffan, Fla., 87 So.2d 586) and therefore the district court, in refusing to dismiss the appeal, rendered a "decision * * * in direct conflict" (emphasis supplied) with the above case. This is not primarily a matter of conflict in decisions justifying review by this court under paragraph 3, supra, but brings into play the provisions of Article V empowering this Court to "issue writs of prohibition * * * to the district courts of appeal. * * *"

Certiorari denied without prejudice to apply for prohibition to this Court.

Certiorari denied.

TERRELL, C.J., and THOMAS, HOBSON and THORNAL, JJ., concur.