
    Appeal of SYRACUSE UNIVERSITY. Matter of the ESTATE of Nellie E. RASEY, Deceased.
    No. 371.
    District Court of Appeal of Florida. Second District.
    Sept. 12, 1958.
    Rehearing Denied Oct. 10, 1958.
    See, also, In re Juen’s Estate, 105 So.2d 908; Id., 105 So.2d 911.
    Byrd & Dressier and John W. Douglass, Ft. Lauderdale, for appellant, Syracuse University.
    G. H. Martin, Ft. Lauderdale, for appel-lees, Marjorie Fox, Guardian of Person of Helen M. Rasey, Incompetent, F. Belle Hunziker, Dora Burne Nagel and Maude Burne Starr.
    Rogers, Morris & Griffis, Ft. Lauderdale, for appellees, Children’s Home Soc. of Florida and Father Flanagan’s Boys Town.
    J. B. Patterson, Ft. Lauderdale, for ap-pellee, Guardian of Property.
    Berryhill, Leaird & Tedder, Ft. Lauder-dale, for appellee, North Broward Hospital Dist.
    McGee & McGee, Lake Worth, for ap-pellees, Children’s Home of Williamsville, New York, Old Folks Home, Herkimer, New York and Genessee-Wesleyan Seminary, Lima, New York.
    McCune, Hiaasen, Kelley & Crum, Ft. Lauderdale, for appellee, First Nat. Bank of Miami and Boyd H. Anderson, Jr., as Executors and Trustees under Will of Nellie E. Rasey, Deceased.
   ALLEN, Judge.

Nellie E. Rasey, a widow, died testate on April 16, 1950. Her will makes bequests to relatives and leaves the residue in trust for the use of Mrs. Rasey’s only child, Helen M. Rasey, for her life. The remainder of the trust corpus is left to charities. The testatrix died within six months after the execution of her last will and testament, apparently bringing such charitable bequests within the provisions of Section 731.19, F.S. 1949, F.S.A.

Appellant, Syracuse University, is one of the charities designated to receive the remainder of the corpus of Nellie E. Rasey’s testamentary trust. The appellant, as petitioner below, filed its petition in the Court of the County Judge of Broward County, Florida, pursuant to F.S. § 745.23, F.S.A., in which the other charitable remaindermen substantially joined. A Circuit Judge of Broward County sat in the place of the County Judge who was disqualified. The Circuit Judge sitting as the County Judge entered an order adverse to the petitioner on the 13th of April, 1956, and a supplementary order entered May 7, 1956.

An appeal was filed May 11, 1956 to the Circuit Court of the Fifteenth Judicial Circuit of Florida, in and for Broward County. October 4, 1957, the Circuit Court, by its order, affirmed the order of the County Judge’s Court.

The appellees filed a motion to dismiss the appeal on certain grounds, which it is not necessary to pass on here, as this court, at the time of the oral argument on appellees’ motion, raised the question of whether a district court of appeal has jurisdiction to hear an appeal taken from a decision of a circuit judge, who was sitting as an appellate judge on an appeal from a County Judge’s Court, in probate, taken prior to July 1, 1957, but whose decision was entered and an appeal therefrom taken to this court, after July 1, 1957.

F.S. § 732.15, F.S.A., provides:

“(1) All orders, judgments, and decrees of the county judge finally deter- : mining rights of any party in any particular proceedings in the administration of the estate of a decedent may, as a matter of right, be appealed to the circuit court and from the circuit court to the supreme court.
“(2) In the event of a circuit judge’s sitting as a county judge as provided in § 732.05, the appeal from any order, judgment, or decree of such circuit judge sitting as a county judge shall be to the circuit court and from the circuit court to the supreme court.”

Constitutional authority for appealing to circuit courts from probate courts was provided by former Article V, Section 11. Article V, Section 5(c), Fla.Const., as amended and approved at the general election of November, 1956, became effective July 1, 1957, F.S.A., and provides, with reference to the jurisdiction of the District Courts of Appeal, as follows:

“Appeals from trial courts in each appellate district, and from final orders or decrees of county judge’s courts pertaining to probate matters or to estates and interests of minors and incompetents, may be taken to the court of appeal of such district, as a matter of right, from all final judgments or decrees except those from which appeals-may be taken direct to the supreme court or to a circuit court.
❖ * * * * *
“ * *= * A district court of appeal may issue writs of mandamus, certio-rari, prohibition, and quo warranto, and' also all writs necessary or proper to the complete exercise of its jurisdiction.”

In the case of Codomo v. Shaw, Fla.1958, 99 So.2d 849, 851, the Florida Supreme Court held that the statutory right of appeal to the circuit court from a final order of the Real Estate Commission (Section 475.35, Fla.Stat., F.S.A.) was removed by elimination of the constitutional provision giving circuit courts'jurisdiction of such matters as the Legislature might provide; that such statute was superseded by the appellate rule providing that appellate review of rulings of any commission or board shall be by cer-tiorari; and that, therefore, appeal would not lie to circuit courts from final orders of the Real Estate Commission suspending registration of real estate brokers.

The Court, in its opinion, said:

“We next consider the possibility of an appeal to the circuit court pursuant to F.S. § 475.35, F.S.A., supra. We note that former Article V, Section 11, of the constitution provided for final appellate jurisdiction in the circuit courts as to certain specified matters 'and of such other matters as the Legislature may provide’. Thus the authority upon which F.S. § 475.35, F.S.A., rested was clear. The quoted language, however, was eliminated from new Article V, Section 6 (the present counterpart of former Section 11) in connection with final appellate jurisdiction, although this language was retained in connection with original jurisdiction. This elimination of the enabling language, to our mind, demonstrates an intention on the part of the framers to remove the support for F.S. § 475.35, F.S.A., and the statute, accordingly, must fall. If this were not enough to convince us that F.S. § 475.35, F.S.A., had been repealed, we would reach the same conclusion on another ground, namely, that the Ap-ellate Rules (Rule 1.4 [31 F.S.A.]) ‘shall supersede all conflicting rules and statutes’ and such rules provide (Rule 4.1) that ‘All appellate review of the rulings of any commission or board shall be by certiorari * * *.’
“If statutory appeal from an order of the Florida Real Estate Commission may no longer be brought, and if review of such order must be accomplished by certiorari, is there any jurisdiction left in the circuit court to entertain such a proceeding? We •.think that there is.”

The decision of the Supreme Court in the case of Codomo v. Shaw, supra, is controlling as to the effectiveness of F.S. § 732.15, F.S.A.

We find no authority in the constitution for an appeal to this court from a decision of the circuit court sitting as an appellate court under F.S. § 732.15, F.S.A. Therefore, the next question that arises is whether this court may review the circuit court’s action in this case, within our constitutional powers, by certiorari. We think we have such power and so hold. See Alliance for Conservation of Natural Resources in Pinellas County, Florida v. Furen, Fla.App., 104 So.2d 803.

Chapter 23826, Laws of Florida, Acts of 1947 (F.S. § 59.45, F.S.A.), provides:

“If an appeal be improvidently taken where the remedy might have been more properly sought by certiorari, this alone shall not be ground for dismissal; but the notice of appeal and the record therein shall be regarded and acted on as a petition for certio-rari duly presented to the supreme court.”

We should point out that in the Furen case, above, counsel questioned whether the specific reference to the Supreme Court in Chapter 23826, above, affected our authority thereunder. We held there, as we hold here, that the substance of such act is to permit an appellate court to construe an appeal as a petition for certiorari.

Since we shall treat the appeal and the record as a petition for certiorari, we shall deny the motions heretofore filed in this cause to dismiss the appeal.

ICANNER, C. J., and SHANNON, J., concur.

KANNER, Chief Judge

(concurring).

I concur in the well reasoned opinion prepared by Judge ALLEN and also as a supplement on my part I offer these comments.

The old and former Article V, section 5 of the state constitution, F.S.A., reposed in the Supreme Court of Florida appellate jurisdiction “of appeals from the Circuit Courts in cases arising before Judges of the County Courts in matters pertaining to their probate jurisdiction and in the management of the estates of infants”. Section 11 of the old article provided that circuit courts shall have “supervision and appellate jurisdiction of matters arising before County Judges pertaining to their probate jurisdiction, or to the estates and interests of minors”. These sections were implemented by the statutory sections 732.15 through 732.20, Florida Statutes, F.S.A.

By the new and present Article V, section 5(c), the district courts of appeal have appellate jurisdiction of appeals “from final orders or decrees of county judge’s courts pertaining to probate matters or to estates and interests of minors and incompetents”, and these appeals may be taken “as a matter of right”. This section is implemented by the Florida Appellate Rules which became effective on July I, 1957, 31 F.S.A., the same date as did the new article.

The new Article V, sections 4(b) and 6(c), prescribing the jurisdiction of the Supreme Court and the circuit courts, reposes no appellate jurisdiction through appeal in these courts pertaining to probate matters or to estates and interests of minors and incompetents.

Under the old Article V, sections 5 and II, appeal pertaining to probate matters and in the management of estates of infants was, first, to the circuit court and, second, from the circuit court to the Supreme Court. The appeal to a circuit court was from an order, judgment or decree of a county judge; and the appeal to the Supreme Court was from an order or judgment of a circuit court rendered on an appeal to it from a county judge’s court. Thus, there were provided two independent appeals.

By the new Article V, section 5(c), only a single appeal is authorized and that is a direct appeal from an order or judgment of a county judge to a district court of appeal. So the first route of appeal to a circuit court and the second route to the Supreme Court under the old Article V have been eliminated.

The right to or the remedy of appeal is not derived from the old English common law. The procedure by appeal, unknown to the common law, was utilized to review causes in equity, ecclesiastical, and admiralty jurisdiction. It is a matter of privilege and not a natural or inherent right, and it depends on the written law. It is, therefore, a matter of additional remedy which may be granted through constitutional or statutory enactment.

Particularly favored by the great weight of authority is the doctrine that ordinarily a party cannot acquire a vested right to an appeal or a mode of procedure for review from one court to another in the absence of a constitutional or statutory guaranty. Where a remedy of appeal is bestowed by the state constitution, it cannot be withdrawn by an act of the legislature. However, the same authority that conferred the privilege can take it away. The doctrine is of early origin. A leading case is Baltimore & P. R. Co. v. Grant, 1879, 98 U.S. 398, 25 L.Ed. 231. See also Ex parte McCardle, 1869, 7 Wall. 506, 74 U.S. 506, 19 L.Ed. 264; and Gwin v. United States, 1902, 184 U.S. 669, 22 S.Ct. 526, 46 L.Ed. 741. Many of the state jurisdictions have adopted and adhere to this doctrine, cases from some of which are: Griffin v. Sisson, 1917, 146 Ga. 661, 92 S.E. 278; Shade v. Colgate, 1949, 3 N.J. 91, 69 A.2d 19; In re Wells’ Estate, 1949, 187 Or. 462, 212 P.2d 729; City of Hutchinson v. Wagoner, 1947, 163 Kan. 735, 186 P.2d 243; Dorris Motor Car Co. v. Colburn, 1925, 307 Mo. 137, 270 S.W. 339; Minnis v. Hamilton County Board of Zoning Appeals, 1951, 89 Ohio App. 289, 101 N.E.2d 388; Texas Farm Bureau Cotton Ass’n v. Lennox, Tex.Civ. App.1927, 296 S.W. 325; People ex rel. Crane v. Hahlo, 1920, 228 N.Y. 309, 127 N.E. 402; and Oklahoma Land Co. v. Thomas, 1914, 43 Okl. 217, 142 P. 801. See also Reed v. State, 1927, 94 Fla. 32, 113 So. 630, 634; 16 C.J.S. Constitutional Law § 272b, p. 1271; 4 C.J.S. Appeal and Error § 3, p. 68, and § 5, p. 71.

The right to appeal has been changed from the old article as implemented by the mentioned statutes to the method prescribed by the new article dealing with the same subject matter, and as implemented by the Florida Appellate Rules, through constitutional process.

In the instant case, the notice of appeal was instituted to the circuit court before the effective time of the new Article V of the Constitution. The circuit court rendered its decision subsequent to the operative date of the new article. As is seen, under the old article there were provided two separate and independent appeals relating to the subject matter of this controversy; the first had to be to the circuit court from the judgment of the county judge and terminated there unless the next appeal was undertaken. The second appeal had to be to the Supreme Court from the judgment of the circuit court. So here the notice of appeal was brought to this district court from the judgment of the circuit court. The new method of review was then already in effect. There is no saving clause that preserves and provides for the former method to be employed so that an appeal could be carried to a district court as applied to a situation such as is here considered; nor is it made to appear that the appealing party has any vested right which is being impaired. This being so, there is no right of appeal under the old article as implemented by the statutes hereinbefore referred to from the order of the circuit court as sought. The notice of appeal, however, as stated in the opinion of the court may be considered and invoked as a petition for writ of certiorari.

ALLEN and SHANNON, JJ., concur.  