Olds v. Alvord

CourtUnited States State Supreme Court of Florida
Citation136 Fla. 549,188 So. 652
PartiesOLDS et al. v. ALVORD et al.
Decision Date06 December 1938

On motion for leave to file an extraordinary petition for a rehearing.

Rehearing granted and mandate recalled.

For former opinion, see 183 So. 711.

TERRELL C.J., and CHAPMAN, J., dissenting. Appeal from Circuit Court, Pinellas County; T. Frank Hobson, judge.

COUNSEL

Edgar John Phillips, Harry L. Thompson, and J. Tweed McMullen, all of Clearwater, for appellants.

Baskin & Jordan, of Clearwater, D. G. Haley, of Sarasota, Mabry Reaves, Carlton & White, of Tampa, and Milam, McIlvaine &amp Milam, of Jacksonville, for appellees.

Dickenson & Dickenson, of Tampa, and Hull, Landis & Whitehair, of De Land, as amici curiae.

OPINION

PER CURIAM.

A motion has been made for leave to file an extraordinary petition for a rehearing of this cause wherein a decree of the Circuit Court was rendered upon the Circuit Judge's understanding of the meaning and effect of an opinion of this Court in another suit involving a similar question of law and the decree so rendered was affirmed here by an evenly divided Court and a rehearing denied at this term by an evenly divided Court.

In the previous case of State v. Town of Bellair, 125 Fla 669, 170 So. 434, a decree of the Circuit Court validating refunding bonds was reversed here by a three to two decision, one Justice no participating.

In this case the Circuit Judge, in rendering the decree herein, stated:

'Were it not for the fact that these identical bond issues were before the Court in the case of State et al. v. Town of Bellair, supra, this Court would be impelled toward a different ruling and one more consonant with the opinion or at least this Court's interpretation of the opinion of our Supreme Court in the case of State ex rel. Rodgers et al. v. Walthal Mayor et al., 125 Fla. 423, 170 So. 115, opinion by Mr. Justice Davis. It must be borne in mind that these bonds were validated by decree of the Circuit Court, which validation proceedings the Court, for the purpose of this opinion, assumes to be valid and deems a determination of the validity of such proceedings unnecessary.'

The decree herein was rendered upon the theory that it followed the opinion in State v. Town of Belleair, 125 Fla. 669, 170 So. 434, supra, and it was affirmed by this Court in a three to three order. Two of the three Justices who rendered the decree of reversal in the Belleair Case above cited voted for a reversal of the decree in this case upon the ground that such decree is contrary to previous decisions of this Court in other cases in which all the Justices concurred.

The effect of the order affirming the decree appealed from in this case by an evenly divided Court and the denial of a rehearing by an evenly divided Court is to make the decree rendered by the Circuit Judge the ultimate law of this case when such decree of the Circuit Court is shown by the record not to be the judicial opinion of the Circuit Judge who rendered the...

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