Mcnally v. State Ex Rel. Bond Realization Corp.
| Decision Date | 05 September 1933 |
| Citation | 150 So. 751,112 Fla. 434 |
| Parties | McNALLY et al. v. STATE ex rel. BOND REALIZATION CORPORATION. |
| Court | Florida Supreme Court |
En Banc.
Error to Circuit Court, Putnam County; Wm. Jackson, Judge.
Mandamus proceeding by the State of Florida, on the relation of the Bond Realization Corporation, against Walter McNally and others, as officials of the City of Palatka, Florida. To review the judgment, respondents bring error. On motion to dismiss writ of error.
Motion denied.
See, also (Fla.) 150 So. 751.
COUNSEL J. V. Walton, of Palatka, for plaintiffs in error.
Akerman & Gray, of Orlando, for defendant in error.
In this case, defendant in error's motion to dismiss the writ of error sued out form the amended final judgment entered in a mandamus proceeding must be denied because it appears that notwithstanding two previous writs of error sued out and dismissed as to the original purported final judgment in the cause, the only final judgment that has ever been entered in the proceeding is that which was entered by the court on May 15, 1933, to which the present writ of error was sued out on the 8th day of June, 1933, returnable to the court on July 11, 1933. As the lastmentioned writ of error was obviously sued out within the six months' limitation of time allowed for taking writs of error in law cases, the grounds of defendant in error's motion to dismiss for the reason that the writ of error was not taken in time, must necessarily fail.
What purports to be a final judgment in the cause entered on November 22, 1932, is not in legal effect a final judgment at all, whether heretofore so regarded by the parties to it, or not. The only legal final judgment that can be entered for the relator in a mandamus case is a judgment of the court ordering a peremptory writ of mandamus to be issued in exact accordance with the alternative writ or an order quashing the alternative writ. The 'order' of November 22, 1932, did not require or provide for the issuance of a peremptory writ; therefore it is not a final judgment, and did not become such until it was amended by the order May 15, 1933, which thereupon became the final judgment in the cause.
Motion to dismiss writ of error denied.
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Mckenna v. State
... ... Demeter Land Co ... v. Florida Public Service Corp., 99 Fla. 954, 128 So ... 402; Hoodless v. Jernigan, 46 ... 584] ... Fla. 1406, 131 So. 407; McNally v. State ex rel. Bond ... Realization Corp., 112 Fla. 434, ... ...
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Treat v. State Ex Rel. Dann
... ... v. Johnson, 105 Fla. 212, 141 So. 141; McNally v ... State ex rel. Bond Realization Corp., 112 Fla. 434, 150 ... So ... ...
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City of Bradenton v. State Ex Rel. Oliver
... ... this court in the case of McNally v. State ex rel. Bond ... Realization Corp., 112 Fla. 434, 150 So. 751, ... ...
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City of Deland v. State Ex Rel. Bond Realization Corp.
... ... In that conclusion we have found no ... error, and therefore approve it as correct. But the ... peremptory writ so awarded was such a complete departure from ... the terms of the commands of the alternative writ in the ... premises that we think the rule laid down in McNally v ... State ex rel. Bond Realization Corporation, 112 Fla ... 434, 150 So. 751, should be applied and the judgment [120 ... Fla. 414] reversed for an appropriate amendment of the ... alternative writ (which is the plaintiff's declaration ... and the foundation for the relief he has succeeded ... ...