City of Bradenton v. State Ex Rel. Perry

• Court: United States State Supreme Court of Florida
• Writing for the Court: DAVIS, Justice.
• Citation: 118 Fla. 838,160 So. 506
• Parties: CITY OF BRADENTON et al. v. STATE ex rel. PERRY.
• Decision Date: 21 March 1935

160 So. 506

118 Fla. 838

CITY OF BRADENTON et al.
v.
STATE ex rel. PERRY.

Florida Supreme Court

March 21, 1935

Rehearing Denied April 10, 1935.

En Banc.

Error to Circuit Court, Manatee County; W. T. Harrison, Judge.

Mandamus proceedings by the State, on the relation of James A. Perry, against the City of Bradenton and others. To review a final judgment awarding peremptory writ of mandamus, defendants bring error.

Reversed and remanded.

BROWN, J., dissenting in part.

COUNSEL [160 So. 507]

[118 Fla. 839] John B. Singeltary and Samuel Kirk, both of Bradenton, for plaintiffs in error.

Hill & Hill, of Tampa, for defendant in error.

OPINION

DAVIS, Justice.

A peremptory writ of mandamus awarded the relator bondholder in this case required the respondents, mayor and members of the city council of the city of Bradenton, to forthwith and without delay convene and pass all necessary motions and resolutions, and to do and perform all other necessary acts and things for authorizing and directing the payment of certain matured principal and interest due and unpaid on the city's bonds and coupons set forth and described in detail in the peremptory writ. The peremptory writ further commanded the respondents, without delay, to authorize and direct the issuance of three certain [118 Fla. 840] particularly described warrants against certain particularly described city funds which the court had, after a trial, adjudged and determined to be surplus funds of the city that had not been otherwise 'used, appropriated, allocated or pledged' either at the time of the service of the alternative writ, or at the end of the fiscal year of June 30, 1933, or at the time of the taking of testimony in the case, for any other municipal purpose. The peremptory writ also contained a direction to the city clerk and to the mayor, both named as respondents in the proceeding, to forthwith sign and countersign each of the aforementioned warrants, which warrants were further ordered to be delivered upon the surrender to the city of the bonds and coupons sued upon. The case is before us on a writ of error to the final judgment awarding the peremptory writ.

A mandamus proceeding is a proceeding at law and the pleadings therein are subject to appropriate amendment in the interest of the administration of justice, whenever application therefor is timely made and the amendment proposed appears to be appropriate or necessary under the rules relating to the amendment of pleadings in other proceedings at law. See section 4295, C. G. L., section 2629, R. G. S., and cases cited thereunder. Kentucky v. Dennison, 24 How. 66, 16 L.Ed. 717; Hartman v. Greenhow, 102 U.S. 672, 26 L.Ed. 271; Moody v. Fleming, 4 Ga. 115, 48 Am. Dec. 210; Bear v. Board of Com'rs of Brunswick County, 124 N.C. 204, 32 S.E. 558, 70 Am. St. Rep. 586.

Mandamus anciently was a high prerogative writ, and it still preserves its character as such when not used for the redress of private wrongs but only in matters relating to the public. State ex rel. Moyer v. Baldwin, 77 Ohio St. 532, 83 N.E. 907, 19 L. R. A. (N. S.) 49, 12 Ann. Cas. 10. When authorized to be used for the redress of private [118 Fla. 841] wrongs a proceeding in mandamus is in all essential particulars a civil action at law. People v. Western Life Indemnity Co., 261 Ill. 513, 104 N.E. 219, Ann. Cas. 1915A, 266.

The petition or information in mandamus is, in law, a mere memorandum in the nature of an affidavit supplying the materials for the recitals of fact in the alternative writ, the function of the petition being to make known to the court the ground of complaint and the facts alleged in support of the...