Hewitt v. State

• Decision Date: 06 June 1931
• Citation: 135 So. 130,101 Fla. 807
• Parties: HEWITT, County Judge v. STATE ex rel. ROBBINS.
• Court: Florida Supreme Court

135 So. 130

101 Fla. 807

HEWITT, County Judge v. STATE ex rel. ROBBINS.

Florida Supreme Court, Division B.

June 6, 1931

Error to Circuit Court, Pinellas County; John U. Bird, Judge.

Proceeding by the State of Florida, on the relation of J. Albert Robbins, for a writ of prohibition prayed to be directed to Harry R. Hewitt, County Judge. To review a judgment granting the writ of prohibition, the County Judge brings error.

Affirmed.

COUNSEL Booth & Dickinson, of St. Petersburg, for plaintiff in error.

Claibourne M. Phipps, of Tampa, for defendant in error.

OPINION

WHITFIELD P.J.

In proceedings brought in the court of the county judge to recover possession of real estate from an alleged tenant, the defendant presented a plea to the jurisdiction of the court upon the ground that the 'cause involves a controversy as to the title of said real estate.' The plea is sworn to and avers:

'1. The said cause involves the question of the title to the real estate described in the writ in that the defendant claims to be the owner of the said real estate and of the improvements thereon; that he is not the tenant of the plaintiff, has no agreement with him for the payment of rent and is not indebted to him in any sum for rent of said property; that until very recently the plaintiff has not claimed to be the owner of said property but has claimed to be the holder of a mortgage indebtedness against the same and that inasmuch as said cause involves a controversy as to the title of said real estate the circuit court has under section 11 of article 5 of the Constitution of the State of Florida exclusive original jurisdiction of said cause.

'2. That heretofore the defendant has instituted in the circuit court for Pinellas County, Florida, on the chancery side thereof a suit alleging that the plaintiff is the holder of a mortgage indebtedness against said property, that said mortgage indebtedness is usurious to such an extent that both principal and interest are forfeited and asking that a deed under which plaintiff holds be declared to be a mortgage and that plaintiff be ordered to reconvey and that defendant be decreed to hold said property free and clear from said indebtedness, that the plaintiff herein demurred to such bill of complaint primarily on the ground that this defendant did not offer to repay the principal of such indebtedness and the demurrer was sustained on that ground no contention being made that the plaintiff herein was the actual owner of said property, than an appeal has been taken from the order sustaining said demurrer and is now pending in the Supreme Court of the State of Florida that by virtue of such facts this court has no jurisdiction to try this cause.'

The county judge disregarded the plea to the jurisdiction, and the circuit court issued a writ of prohibition. A writ of error to this court was taken to the judgment in prohibition.

The Constitution provides that 'the County Judge shall have original jurisdiction * * * of proceedings relating to the forcible entry or unlawful detention of lands and tenements.' Section 17, article 5. 'The Circuit Courts...