Jukes v. State Ex Rel. Allyn

• Decision Date: 13 March 1936
• Parties: JUKES et al. v. STATE ex rel. ALLYN.
• Court: Florida Supreme Court

166 So. 552

123 Fla. 260

JUKES et al. v. STATE ex rel. ALLYN.

Florida Supreme Court, Division B.

March 13, 1936

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

Mandamus proceeding by the State, on the relation of A. C. Allyn against Harry S. Jukes and others. Judgment granting peremptory writ was entered, and the respondents bring error.

Affirmed.

COUNSEL Kelly & Casler, of Clearwater, for plaintiffs in error.

Casey &amp Walton and Frank O. Spain, all of Miami, and William K Whitfield, of Tallahassee, for defendant in error.

OPINION

TERRELL Justice.

This writ of error is from a final judgment granting a peremptory writ of mandamus notwithstanding the return commanding the respondents to authorize payment of interest coupons held by relator. The final judgment and issuance of the peremptory writ are assigned as error.

Two questions are argued here, but both turn on the sufficiency of the return to the amended alternative writ and being so this is the only question we are required to adjudicate.

The purpose of this proceeding was to require the board of public instruction of Pinellas county to pay past-due interest coupons of special tax school districts 1, 7, and 12. The amended alternative writ alleges that taxes were levied for payment of the interest coupons in question, that at the time of the service of the original alternative writ there was in the interest and sinking fund of special tax school district No. 1, of Pinellas county, the sum of $770 or more, being the proceeds of taxes levied as aforesaid. There is a like allegation as to $4,120 being in the interest and sinking fund of special tax school district No. 7, and $3,170 being in the interest and sinking fund of special tax school district No. 12. The original alternative writ alleged that these sums had been collected and were then in the custody and control of the respondents and were ample to pay the coupons.

The return to the alternative writ in substance denies that respondents have on hand any fund applicable to the payment of the coupons and by way of avoidance alleges that such fund as they did have applicable to the payment of said coupons has been placed in escrow in an out of state bank. The terms of the escrow are not alleged, nor is it alleged that the funds were sent to the out of state bank prior to service of the original writ or that the funds are out of the custody and control of respondents.

In essence the return may be likened to a plea in confession and avoidance predicated on an alleged refunding agreement in which the interest and sinking funds in question had been placed in escrow with a Chicago bank for the purpose of paying interest...