Atkins v. State Ex Rel. Shelton

• Decision Date: 07 March 1939
• Citation: 187 So. 363,136 Fla. 596
• Parties: ATKINS, Superintendent of Public Instruction of Calhoun County v. STATE ex rel. SHELTON et al.
• Court: Florida Supreme Court

187 So. 363

136 Fla. 596

ATKINS, Superintendent of Public Instruction of Calhoun County v. STATE ex rel. SHELTON et al.

Florida Supreme Court, Division B.

March 7, 1939

Error to Circuit Court, Calhoun County; E. C. Welch, Judge.

Mandamus proceeding by the State, on the relation of Jossie Shelton joined by her husband, C. W. Shelton, against George Atkins as Superintendent of Public Instruction of Calhoun County Fla., an ex Secretary of the Board of Public Instruction of Calhoun County, Fla., to compel respondent to sign and attest warrants drawn in relator's favor. Judgment that peremptory writ of mandamus issue, notwithstanding return of respondent, and respondent brings error.

Reversed and remanded.

BUFORD J., dissenting.

COUNSEL J. Velma Keen and A. Frank O'Kelley, Jr., both of Tallahassee, for plaintiff in error.

No appearance for defendants in error.

OPINION

PER CURIAM.

This writ of error is taken to the judgment of the Court that peremptory writ of mandamus issue, notwithstanding the return of respondent.

Relator Jossie Shelton, joined by her husband, C. W. Shelton, filed, in the Circuit Court of Calhoun County, her petition for an alternative writ of mandamus, praying that George Atkins, as Superintendent of Public Instruction of Calhoun County, and ex-officio Secretary of the Board of Public Instruction, be commanded to forthwith sign and attest warrant number 717, drawn in relator's favor.

The petition alleged in substance that on October 7, 1932, relator obtained judgment against the Board of Public Instruction of Calhoun County; that on June 18, 1938, the Circuit Court of Calhoun County issued a peremptory writ of mandamus requiring Ralph Edwards, as Chairman, and H. M. Nichols and C. R. Weston, as members of and constituting the Board of Public Instruction of Calhoun County, to pay relator 50% of the amount due for principal and interest, together with costs, on said judgment; that pursuant to said writ of mandamus, the Board of Public Instruction met, on June 18, 1938, and on motion duly made, seconded and passed, it was ordered that $910.40 (50% of the amount due on said judgment) be paid, and thereupon School Warrant #717 of Calhoun County, drawn on the Bank of Blountstown, was drawn and signed by Ralph Edwards, Chairman of the Board; that it then became the lawful duty of George Atkins, Superintendent of Public Instruction of Calhoun County, and ex officio Secretary of the Board, to sign and attest said warrant and deliver same to relator, but notwithstanding such lawful duty said respondent fails and refuses so to do.

On June 24, 1938, alternative writ of mandamus was issued, made returnable the following day at 10:30 a. m., commanding respondent to forthwith sign and attest said warrant, drawn as aforesaid, and deliver the same to relator, her agent or attorney, or show cause why he fails so to do.

What is styled in the record as order of the court, but which both parties have treated as the final judgment in the case, contains a history of the proceedings in the case had on June 25, 1938. It is as follows:

'Whereas, the Alternative Writ of Mandamus herein being returnable at 10:30 A. M. this day, the Relator at that time asked the Court for leave to amend the Alternative Writ of Mandamus, thereupon Respondent filed a Motion to Quash the Alternative Writ of Mandamus.

'Thereupon, upon consideration thereof, it is ordered, adjudged and decreed that the Motion to Quash the Alternative Writ of Mandamus be, and it is hereby, granted, with leave to Relator to amend the Alternative Writ of Mandamus instanter and with leave to Respondent to plead further by 6:00 P. M. this day; and

'Whereas, at the last mentioned time and date Respondent asked that the Motion to Quash the Alternative Writ of Mandamus be extended to apply to the Alternative Writ of Mandamus, as amended, and thereupon, after argument of counsel, the Motion to Quash was denied by order entered on this day with directions to Respondent to file an answer or return at 8:00 P. M. this day, and whereas counsel for Respondent orally moved the Court for an order allowing several days in which to plead further and vigorously insisted that justice requires that Respondent have a reasonable time to investigate the facts of the case and in order to prepare a proper return in the premises.

'Thereupon, upon consideration thereof, it is ordered, adjudged and decreed that the Motion be, and it is hereby denied; and

'Whereas, pursuant to this order the return of the Respondent was filed at 8:00 P. M. this day and thereupon Relator filed a Motion for A Peremptory Writ of Mandamus Notwithstanding the Return, and counsel for Respondent orally moved the Court for an order requiring Relator to fix a date for hearing such motion and requiring Relator to give counsel for Respondent at least five days' notice thereof or at the least a reasonable notice, counsel for Respondent vigorously insisting upon a right to have reasonable opportunity to prepare for such hearing,

'Thereupon, upon consideration thereof, it is hereby ordered, adjudged

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