State Ex Rel. Caro v. Reese

• Decision Date: 10 May 1940
• Citation: 195 So. 918,142 Fla. 734
• Court: Florida Supreme Court
• Parties: STATE ex rel. CARO, County Sol. v. REESE, Judge.

195 So. 918

142 Fla. 734

STATE ex rel. CARO, County Sol. v. REESE, Judge.

Florida Supreme Court

May 10, 1940

En Banc.

Original prohibition proceeding by the State, on the relation of Forsyth Caro, as County Solicitor of Escambia County, Fla against R. Pope Reese, as Judge of the Court of Record of Escambia County, Fla., wherein a rule in prohibition was issued.

Rule in prohibition made absolute.

COUNSEL Forsyth Caro and Albert Caro, both of Pensacola, for petitioner.

Coe &amp McLane, of Pensacola, for defendant.

George Couper Gibbs, Atty. Gen., and Thomas J. Ellis, Asst. Atty Gen., amici curiae.

OPINION

PER CURIAM.

In proceedings on a Rule in Prohibition issued by this court it appears that:

'On the 11th of September, 1939, Forsyth Caro, as County Solicitor of Escambia County, Florida, filed in the Court of Record of Escambia County, Florida, a criminal information charging Jim Bailey, Charlie Helton and Johnnie Johnson, with the crime of breaking and entering and grand larceny, and on the 29th day of September an amended information was filed, charging the same defendants with breaking and entering, grand larceny, and receiving stolen property. On the 15th day of November, 1939, * * * John Lewis Reese, an attorney at law, filed his written appearance for one of the defendants, Johnnie Johnson alleging that he was related to Honorable R. Pope Reese, Judge of the Court of Record of Escambia County, Florida, within the third degree of consanguinity, in that he was the son of the Judge of said Court, suggesting that said Judge was disqualified under the law to sit in said cause. And the Judge of said Court on the 15th day of November, 1939, certified his disqualification. On the 27th day of February, 1940, the Judge of said Court entered an order in the cause certifying that he was disqualified as to the defendant, Johnnie Johnson, only, and that no ground of disqualification existed in the cause as to the other defendants, stating that said disqualification automatically resulted in a severance in the case.'

The trial Judge takes the view that he is only disqualified as to Johnnie Johnson, one of the defendants.

Section 3, Chapter 16053, Acts of 1933, contains the following 'In any cause in any of the courts of this State any party to said cause, or any person or corporation interested in the subject-matter of such litigation, may at any time before final judgment, if the case be one at law, and at any time before final...