Kinzel v. City of North Miami, 67--1068
| Decision Date | 02 July 1968 |
| Docket Number | No. 67--1068,67--1068 |
| Parties | Charles W. KINZEL, Appellant, v. CITY OF NORTH MIAMI, a municipal corporation, et al., Appellees. |
| Court | Florida District Court of Appeals |
Bernard Berman, Prunty, Olsen & Slotnick, Miami, for appellant.
Martin D. Kahn, No. Miami, for appellees.
Before CHARLES CARROLL, C.J., and PEARSON and BARKDULL, JJ.
Appellant seeks reversal of an order dismissing his complaint, filed under § 102.161 Fla.Stat., F.S.A., 1 to contest an election of the City of North Miami, in which appellant was an unsuccessful candidate for the office of councilman.
The complaint, filed within the 10-day period specified in the statute, was not verified. After the period allowed for the filing of such complaint had expired, the complaint was amended to include a verification. The defendant filed an answer incorporating a motion to dismiss, and the trial court dismissed the complaint for failure to file a sworn bill within the 10-day period. In so holding the trial court was eminently correct, and we affirm.
In an early interpretation of the statutory action invoked by the appellant here, the Supreme Court said: Farmer v. Carson, 110 Fla. 245, 148 So. 557, 559. Also, in the case of Gunn v. Robles, 100 Fla. 816, 130 So. 463, commenting on the statute, the Supreme Court said: 'Where a particular remedy is conferred by statute, it can be invoked only to the extent and in the manner prescribed.' Compare Griffin v. Knoth, Fla.1953, 67 So.2d 431, in which it was held that where a sworn complaint filed within 10 days after canvass of returns, raised only a dispute as to the absentee ballots, a new ground of contest relating to the returns on the machines could not be included and presented by amendment of the pleadings after the 10-day period in question.
The order of the trial court dismissing the complaint in the present case is supportable on the further ground that the complaint named as defendant the City of North Miami, whereas the enabling statute provided: 'The successful candidate and the canvassing board or election board shall be the proper party defendants.'
The general proposition that when a statutory action...
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State ex rel. Underwood v. Silverstein
...to mandatory time periods in election contest statutes. E. g., Gay v. Brooks, 251 Ark. 565, 473 S.W.2d 441 (1971); Kinzel v. City of North Miami, 212 So.2d 327 (Fla.App.1968); Lebens v. Harbeck, 308 Minn. 433, 243 N.W.2d 128 (1976); Lohmaier v. Ulster County Board of Elections, 50 A.D.2d 10......
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Waupoose v. Kusper
...being the case, the Board of Election Commissioners ruled correctly when it sustained the motion to dismiss. See Kinzel v. City of North Miami (Fla.App.1968), 212 So.2d 327. The third issue is whether the Board erred in refusing to grant appellants leave to amend their contest petition. The......
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Caruso v. City of Bridgeport
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Bailey v. Davis, S--251
...Warranto as provided in Section 102.164 Florida Statutes, F.S.A. In its order, the trial court cited the case of Kinzel v. City of North Miami, 212 So.2d 327 (Fla.App.3rd, 1968). We agree with the trial court. In the Kinzel case, the appellate court 'The general proposition that when a stat......