City of Sarasota v. State Ex Rel. Evans

• Decision Date: 16 July 1936
• Parties: CITY OF SARASOTA et al. v. STATE ex rel. EVANS.
• Court: Florida Supreme Court

168 So. 417

126 Fla. 405

CITY OF SARASOTA et al. v. STATE ex rel. EVANS.

Florida Supreme Court, Division A.

July 16, 1936

Error to Circuit Court, Sarasota County; Paul C. Albritton, Judge.

Action of mandamus by the State of Florida, on the relation of R. W Evans, against the City of Sarasota and others. To review an adverse judgment, the defendants bring error.

Affirmed.

COUNSEL Harrison E. Barringer, of Sarasota, for plaintiffs in error.

Evans &amp Glenn, of Sarasota, for defendant in error.

OPINION

DAVIS Justice.

R. W Evans brought mandamus against the city of Sarasota to require the respondent to amend its budget for the fiscal year beginning November 1, 1934, so as to provide in said budget a sum sufficient to pay relator the amount due him on certain of the city's bonds of which relator was the holder and to levy a special tax therefor.

The court, after considering a motion for a peremptory writ ordered that the peremptory writ issue on condition that an amendment be made to the alternative writ to make it conform to the respondent's fiscal year beginning November 1, 1935; it appearing that it would cause confusion and disorder at the time the case was finally disposed of in relator's favor, to issue a peremptory writ applicable to the fiscal year beginning November 1, 1934, as commanded in the alternative writ as it originally stood in the case. This was proper practice in such a situation. City of Bradenton v. State ex rel. Perry, 118 Fla. 838, 160 So. 506, 100 A.L.R. 400.

The amendment to the alternative writ was made to avoid the defense of 'confusion and disorder' set up in the answer to the writ as it stood applicable to the year 1934 for which it was not convenient to amend the city's budget at the time the application for peremptory writ was made. The amendment to the alternative writ was altogether a matter of form only, and if error was committed in allowing it without notice to the respondent, the judgment will not be reversed for such purely technical error where it is apparent that the same judgment must inevitably be re-entered in the cause even if notice is now required to be given of the amendment to the alternative writ required of relator to meet the views of the circuit judge in awarding him a peremptory writ in the cause before the court.

No application was made to the court below to set aside the award of a peremptory writ after the amendment to the...