In this case the judgment of the Circuit Court reversing a judgment of the Civil Court of Record and directing the Civil Court of Record to enter judgment for the opposite party, was quashed. See Ulsch v. Mountain City Mill Company, opinion filed December 21, 1931, not yet reported.
By petition for rehearing we are asked to make an order to the effect that if this Court should still be of the opinion that the judgment of the Circuit Court should be quashed, then in that event, the judgment of this Court should be enlarged by directing the Circuit Court to order a new trial in said cause, with privilege to file in the Civil Court of Record a plea to the merits, in order to prevent a palpable miscarriage of justice.
By direction of the Court, counsel have filed briefs on the question: "Whether the Supreme Court has authority to do more on certiorari than quash the judgment, that is, to direct the Circuit Court to grant a new trial or permit other pleadings?" That is the question we are now called on to decide.
Our conclusion is, that on certiorari we have no authority *Page 420
to do more than, either quash the writ of certiorari, or quash the judgment brought here by that writ. Benton v. State,
But when a judgment is quashed here on writ of certiorari, that cause is again remitted to the consideration and determination of the Court whose judgment has been set aside. It is consequently within the power of that Court to render another judgment not in conflict with the holding of the Supreme Court or other Court exercising powers pursuant to the writ of certiorari granted.
In the case at bar, the Circuit Court whose judgment of reversal has been quashed, is now at full liberty to render any judgment warranted by the record on appeal from the Civil Court of Record, provided the same be not in conflict with the law of the case as necessarily determined by the proceeding already had in this Court.
We have no authority to direct what the judgment of the Circuit Court shall be. We simply quash the judgment heretofore rendered by that Court, for the reasons pointed out in our opinion, leaving it to the Circuit Court to render such new judgment as may be according to law and justice, and not in conflict with what we have heretofore decided. We are unable to give directions concerning what judgment the Circuit Court shall enter, or to grant the respondent's petition in respect thereto.
Such petition should be presented to the Circuit Court as a Court of primary appellate jurisdiction, and that Court will then have such authority to make disposition of it as may be warranted by the record and the law of the case as decided here, notwithstanding the fact that we have already quashed the previous judgment which unconditionally reversed the judgment of the Civil Court *Page 421 of Record and gave it directions to enter a particular judgment for the opposite party.
Upon writ of certiorari, we neither affirm nor reverse the judgment, nor try the case upon its merits. We must either quash the proceedings of the Judge of the Circuit Court or quash the writ which brings it here. Basnet vs. Jacksonville,supra.
Rehearing denied and motion of respondents to give directions refused.
WHITFIELD, P.J., AND TERRELL AND DAVIS, J.J., concur.
BUFORD, C.J., AND ELLIS AND BROWN, J.J., concur in the opinion and judgment.
