State Ex Rel. Burns v. Gray

• Decision Date: 13 January 1939
• Citation: 185 So. 843,135 Fla. 826
• Parties: STATE ex rel. BURNS v. GRAY, Circuit Judge.
• Court: Florida Supreme Court

185 So. 843

135 Fla. 826

STATE ex rel. BURNS v. GRAY, Circuit Judge.

Florida Supreme Court

January 13, 1939

Rehearing Denied Feb. 6, 1939.

Original proceeding for mandamus by the State, on the relation of W H. Burns, against the Honorable DeWitt T. Gray, as circuit judge of the Fourth Judicial District of Florida. The writ was demurred to.

Demurrer overruled, motion to quash denied, and respondent allowed to file a return within 15 days.

BROWN J., dissenting.

COUNSEL W. C. Johnson and Bedell & Bedell, all of Jacksonville, for relator.

Charles A. Powers and Charles A. Powers, Jr., both of Jacksonville for respondent.

OPINION

PER CURIAM.

An alternative writ of mandamus herein, issued by this court alleges in substance that a judgment in detinue was obtained in the Circuit Court for Duval County by W. H. Burns against W. H. Adams, which was reversed by this Court 'with directions to vacate the judgment of the Circuit Court', with costs in the sum of $209.66 taxed against the defendant in error, W. H. Burns, September 10, 1936. Adams v. Burns, 126 Fla. 685, 172 So. 75.

The court held that detinue does not lie where the property is in custodia legis, and stated that in such case the remedy is 'an action of trespass or trover.' Page 696, 172 So page 80.

It is alleged that thereafter on May 27, 1937, the relator, W. H. Burns brought in the Circuit Court for Duval County, Florida, upon the same facts a declaration in counts for trespass and for trover against W. H. Adams, who, on June 24, moved for an order staying the cause until plaintiff, Burns, pays the judgment against him for costs in the prior action of detinue.

The Court made the following order:

'This cause coming on for hearing upon motion of the Defendant for a stay order herein, and the Court having heard Counsel for the respective parties, and the Court finding that the Plaintiff Burns has not paid the judgment against him for Two Hundred Nine and Sixty-six Hundreths ($209.66) Dollars, rendered in that certain action wherein W. H. Burns was Plaintiff, and W. H. Adams was Defendant, which judgment is recorded in Minute Book 63 at page 219 of the records of this Court, and it appearing to the Court that the instant suit is vexatiously brought, and that Plaintiff's motion for a stay order until such time as the judgment for costs and interest thereon in the detinue action, is paid, should be granted, and the Court being advised in the premises, it is

'Ordered and adjudged that this cause be and it is hereby stayed until such time as the Plaintiff W. H. Burns shall file with this Court satisfactory proof that the judgment of this Court recorded in Minute Book 63 at page 219 of the records of this Court, together with interest thereon, shall have

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