Baskin v. Klemm
| Decision Date | 06 March 1935 |
| Citation | 160 So. 509,118 Fla. 657 |
| Parties | BASKIN et al. v. KLEMM. |
| Court | Florida Supreme Court |
Rehearing Denied March 22, 1935.
Error to Circuit Court, Pinellas County; T. Frank Hobson, Judge.
Mandamus proceedings by A. M. Klemm, a widow, against H. H. Baskin, as mayor-commissioner, and others. To review a judgment defendants bring error.
Affirmed without prejudice and remanded for further proceedings in accordance with opinion.
COUNSEL John C. Polhill and Jones & White, all of Clearwater, for plaintiffs in error.
Touchton & Crittenden, of Winter Haven, for defendant in error.
This is the second appearance of this case here. See State ex rel. Klemm v. Baskin, 111 Fla. 667, 150 So. 517, 518. In that opinion and judgment we held that the relator was entitled to the relief prayed although the time for performance under the command of the alternative writ had expired and there we said:
'In the present case, the relief sought may be accomplished by the amendment of the alternative writ and the issuance of a peremptory writ thereon, so as to require the respondent to raise the funds in controversy in a current budget, that we have held should have been included in the 1931-1932 budget, since the duty involved is a continuing one and the right to its enforcement has not been lost because of the time consumed in the appellate proceedings.'
When the mandate went down, the alternative writ was amended as suggested and newly elected and qualified municipal officers were substituted in place of those whose terms of office had expired. Respondents then with the consent of the court filed a new return sought to set up facts showing the depresed financial condition of the municipality and the volume of its obligations as the basis for a prayer that the required levy be spread over a period of years instead of it being required that the entire levy be made in one current year. The lower court properly held that the judgment of the Supreme Court required the levy to be ordered made in one current year. The return was insufficient as it stated no facts in bar of judgment. Treat v. State ex rel. Dann, 160 So. 498, opinion filed at this term of this court.
The former writ of error in this case was to review a final judgment entered on the merits and, therefore, the opinion and judgment rendered by this court became a judgment of this court on the merits and the circuit court was without jurisdiction to change that judgment without first having permission of this court to so change or modify its judgment.
And so it is that the judgment must be affirmed. In affirming the judgment, however, we do so without prejudice to the respondents making application for, and with permission to the court below to consider and make appropriate orders on, such application to spread the levy to be made over a term of two or more years.
In State ex rel. Taliaferro v. Baskin, 113 Fla. 115, 151 So. 421, 422, we said:
And, in passing upon petition for rehearing, we said:
'A return to an alternative writ of mandamus, in order to be sufficient, must be one of two things: (1) It must traverse the material allegations of the writ to such extent as to show that, with the traversed facts unproved, the alternative writ should not be made peremptory; (2) the return must confess the allegations of the writ and set up some new matter sufficient in itself to bar the right to a peremptory writ.'
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Lesperance v. Lesperance
...Central and Peninsular Railroad Company, 39 Fla. 243, 22 So. 697; State ex rel. Reynolds v. White, 40 Fla. 297, 24 So. 160; Baskin v. Klemm,118 Fla. 657, 160 So. 509; Cone v. Cone, Fla.1953, 68 So.2d 886; Berger v. Leposky, Fla.1958, 103 So.2d 628; State ex rel. Stewart v. Circuit Court of ......
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State ex rel. Tobin v. Holt, 59-662
...the trial court. Bloxham v. Florida Cent. & P. R. Co., 39 Fla. 243, 22 So. 697; Walker v. Young, 93 Fla. 29, 111 So. 516; Baskin v. Klemm, 118 Fla. 657, 160 So. 509; Vining v. American Bakeries Co., 121 Fla. 122, 163 So. 519; State ex rel. Gibbs v. Circuit Court of Eleventh Judicial Circuit......
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Russell v. McQueen
...825 (Fla.1975); O.P. Corp. v. Vill. of N. Palm Beach, 302 So.2d 130 (Fla.1974); Cone v. Cone, 68 So.2d 886 (Fla.1953); Baskin v. Klemm, 118 Fla. 657, 160 So. 509 (1935); State ex rel. Dowling Co. v. Parks, 99 Fla. 1264, 128 So. 837 (1930); Curry v. State, 16 So.3d 933 (Fla. 3d DCA 2009); Ro......
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...We think the allegations of this motion filed by the City of Sarasota in this case brings it within the principles laid down in Baskin v. Klemm, supra, and State ex Bottome v. City of St. Petersburg (Fla.) 170 So. 730, 731. As in the latter case, so here, the bonds sued on bear interest at ......