Schwob Company of Florida filed its petition in the circuit court praying for a review and reversal with instructions of that certain order of the Florida Industrial Commission dated April 17, 1942, wherein it denied petitioner's application for re-determination of its rate of contribution under the Unemployment Compensation Act. Respondent filed its motion to dismiss challenging the legal sufficiency of the petition to show any ground for the relief sought. The question of law presented by the petition and motion to dismiss was not adjudicated by the circuit court but was on joint motion of the parties certified to this Court under Rule 38 for adjudication. *Page 204
The petition must be denied because it attempts to transfer the jurisdiction of the circuit court to this Court, which cannot be done. Sections Five and Eleven of Article Five of the Constitution defines the jurisdiction of the circuit courts and this Court and no rule of court or statute will be construed as affecting that jurisdiction. This is not a case in which the Court and the circuit court have coordinate jurisdiction.
The appellate jurisdiction of this court cannot be invoked and a cause transferred bodily to it except from a determination of the inferior court. Transfer of a cause to this Court without such determination amounts to transferring original jurisdiction to it. The Legislature nor this Court has power to extend the jurisdiction of a court beyond that defined in the Constitution. If a case is one in which this Court and the circuit court have coordinate jurisdiction, a different rule may apply.
Rule 38 of the Rules of this Court was adopted and became effective April 1, 1942. Its purpose was to enable the circuit court to apply to this Court for instruction as to questions of law that arise in the litigation of causes before it. Questions of fact will not be certified under the rule but distinct questions of law only will be considered and they must be without controlling precedent, must arise out of the main litigation, and must facilitate its disposition. On such questions, the court may give binding instructions or if appropriate it may require the whole record sent up and dispose of the case as if on appeal.
Typical of the questions that may be certified to this Court under Rule 38 are those affecting jurisdiction of the circuit court, procedural questions, what statute of limitations governs, who are proper parties to the cause, scope of a statute as affecting power of the circuit court. These and others present questions ancillary to the main issue that sometimes bring a half dozen or more appeals to this Court before the merits of the case are reached and disposed of. Rule 38 should remedy this impediment to the dispatch of causes. It may also be employed to transfer cases in which this Court and the circuit court have coordinate jurisdiction. *Page 205
From this analysis, it will be seen that when cases in which this Court and the circuit courts have coordinate jurisdiction are eliminated a large percentage of the cases brought up under Rule 38 will involve nothing more than questions of nomenclature. That is to say, proceedural and jurisdictional questions and questions that will dispose of the whole case at the outset. Litigants should not be burdened with repeated appeals to settle such questions. If the rule did nothing more than relieve this, it would serve a good purpose.
The certificate is denied because the question certified is not within the contemplation of the rule.
WHITFIELD, BUFORD, CHAPMAN and ADAMS, JJ., concur.
BROWN, C. J., and THOMAS, J., dissenting in part but concurring in the order made.