Lamb v. Harrison

• Decision Date: 15 May 1926
• Citation: 91 Fla. 927,108 So. 671
• Parties: LAMB v. HARRISON, Circuit Judge.
• Court: Florida Supreme Court

108 So. 671

91 Fla. 927

LAMB v. HARRISON, Circuit Judge.

Florida Supreme Court

May 15, 1926

En Banc.

Original proceeding by John J. Lamb for mandamus, to be directed to W T. Harrison, Judge of the Circuit Court for the Eighteenth Judicial Circuit Court in and for Manatee County.

Motion for issuance of peremptory writ denied, and alternative writ dismissed.

See also, 104 So. 855.

Syllabus by the Court

SYLLABUS

Motion for peremptory writ is equivalent of and operates as demurrer to return of respondent and amounts to admission of truth of facts therein alleged. The motion for the peremptory writ of mandamus is the equivalent of and operates as a demurrer to the return of the respondent, and hence amounts to an admission of the truth of the facts therein alleged.

Mandamus will not issue to enforce right which is conditional or incomplete because of conditions precedent, which have not been or which are still to be performed by petitioner. Mandamus will not issue to enforce a right which is conditional or incomplete by reason of conditions precedent which have not been or which are still to be performed by the petitioner.

Peremptory writ will not be issued when it will be unavailing or useless, or when compliance therewith would be nugatory and fruitless to petitioner or relator. The peremptory writ of mandamus will not be issued when it will be unavailing, or useless, or when compliance with it would be nugatory, in its effects, or without beneficial results and fruitless to the petitioner or relator.

Application for writ of error coram nobis, based on newly discovered evidence going to merits of issue tried, which trial resulted in judgment assailed by application for writ, is insufficient in law, and could be properly denied without taking testimony in support thereof. An application for writ of error coram nobis, which is based upon newly discovered evidence, going to the merits of the issue tried, which trial resulted in the judgment assailed by the application for the writ, is insufficient in law, as this remedy cannot be invoked on such grounds, and the same would be properly denied without taking testimony in support thereof, the application being insufficient upon its face.

COUNSEL

Palmer, Dickenson & Shurley, of Tampa, for petitioner.

J. B. Johnson, Atty. Gen., H. E. Carter, Asst. Atty. Gen., and Chas. B. Parkhill, State's Atty., O. K. Reaves and Herbert S. Phillips, all of Tampa, for respondent.

The petitioner, John J. Lamb, was on March 27, 1925, convicted of murder in the first degree, with recommendation to mercy, in the circuit court of Manatee county, over which Hon. W. T Harrison, the judge of the circuit court for the Eighteenth judicial circuit of Florida, in and for said Manatee county, was presiding, and was, pursuant to the statute, sentenced to life imprisonment. Writ of error was taken from said judgment to this court, and the judgment of conviction was affirmed at the preceding term of this court, and motion for rehearing was denied on February 10, 1926, at the present term. Lamb v. State, 107 So. 530. On February 16, 1926, at the present term, and before the mandate of this court had been transmitted to the trial court, Lamb presented here a petition sworn to by himself and his counsel, praying that he be granted 'the right and privilege of applying to the Hon. W. T. Harrison, judge of the circuit court of Manatee county, Fla., before whom he was tried and convicted, for a writ of error coram nobis.' The grounds of this petition and the reasons for granting the same, together with a statement of the function and scope of such writ of error coram nobis, are set forth in the opinion of this court rendered March 1, 1926, and an order was made permitting the petitioner to make 'due and proper application to the judge of the circuit court for Manatee county, Fla., praying for the granting of a writ of error coram nobis addressed to the judgment of conviction,' which had been affirmed; and the execution of the mandate from this court, which was transmitted to the trial court on the same day said order was rendered, was stayed for 20 days, during which time the said John J. Lamb was permitted, upon 5 days' notice to the proper legal representatives of the state, to make the application therein authorized, 'upon a due and adequate showing for the granting of a writ of error coram nobis in the premises.' See Lamb v. State, 107 So. 535.

On April 30, 1926, said John J. Lamb filed here a petition for the issuance of an alternative writ of mandamus, directed to said Circuit Judge W. T. Harrison, directing him to hear and determine such application, or show cause for his refusal so to do, the petitioner alleging that within the 20 days allowed he had filed in the circuit court of Manatee county his application for a writ of error coram nobis and presented the same to said W. T. Harrison, judge of said circuit court, and thereafter he had filed in said cause and presented to said circuit judge his and the required supporting affidavits of the disqualification of said circuit judge to hear and determine said matter, and thereupon the said circuit judge had made and entered an order to the effect that he was disqualified and could proceed no further in said cause; that he then made application to the Governor to send a judge to hear and determine said cause, which the Governor declined to do upon being advised that the Hon. W. T. Harrison was the proper judge to hear and determine said matter; that thereupon petitioner, after giving notice to counsel for the state, applied to Hon. W. T. Harrison, the judge of said circuit court, to hear and determine said matter, and filed his written withdrawal and abandonment of the affidavits of disqualification above referred to, and moved the court for an order vacating the order of disqualification; that upon presenting said application and motion to withdraw said disqualifying affidavits, the said circuit judge did refuse to consider the same, and indorsed thereon his order refusing to proceed further in said cause.

The alternative writ of mandamus prayed for was issued by this court, and the respondent circuit judge filed his return within the time prescribed, in which he specifically denied that the petitioner ever made application before the respondent for a writ of error coram nobis within the 30 days from March 1 1926, but filed said application in said circuit court on March 13, 1926, the same being addressed, 'to the Honorable Judge of the Said Court Appointed to Act in Lieu of Hon. W. T. Harrison, Disqualified,' and on the same date gave notice to the representatives of the state that application would be made on March 18, 1926, at Bradenton, Fla., 'to the circuit judge who might be assigned to said Manatee county and said circuit for the purpose of hearing a certain application for a writ of error coram nobis on behalf of petitioner'; that before this, on March 10, 1926, the petitioner filed with the clerk and presented to respondent purported affidavits of disqualification; and that instead of making application to the respondent on said March 18th, for a writ of error coram nobis, the petitioner, by his attorneys, contended and urged before the respondent that, because of the allegations in said affidavits, the respondent was disqualified to hear said application; that respondent upon hearing and considering said original affidavits, based in the main on respondent's refusal of bail, and upon the respondent's rulings during the trial and on the motion for new trial, which rulings had been affirmed by this court, determined that he was not disqualified and set the application down for hearing before him at Bradenton at 10 a. m. March 19th; that when said application came on to be heard before the respondent on said 19th of March, the petitioner, by his attorneys, instead of presenting the application for a writ of error coram nobis, contented themselves with filing an additional affidavit setting forth additional grounds and reasons for the disqualification of the respondent, charging prejudice because of hard feeling between the respective families of the petitioner and the respondent because of certain differences arising some four or five years previously between a brother of the petitioner and a brother of the respondent, upon consideration of which respondent made and entered an order determining that he was disqualified to consider the application or to make any further orders in said matter.Copies of all these affidavits are attached as exhibits to the return. The respondent further answered that the petitioner, on April 29, 1926, had filed with the clerk of said court a motion seeking to withdraw the affidavits of disqualification, and for respondent to proceed, hear, and determine the same, whereupon respondent declined to make any further or other order in the matter; that the respondent was in no wise responsible for the acts of petitioner and his attorneys for disqualifying the respondent and failing to make application to the respondent for such writ of error coram nobis as authorized by, and within the time allowed by, this court. The respondent also says that,...