State Ex Rel. Clark v. Smith

• Decision Date: 10 October 1938
• Citation: 183 So. 730,134 Fla. 190
• Parties: STATE ex rel. CLARK v. SMITH, Judge.
• Court: Florida Supreme Court

183 So. 730

134 Fla. 190

STATE ex rel. CLARK v. SMITH, Judge.

Florida Supreme Court, Division A.

October 10, 1938

Original mandamus proceeding by the State of Florida, on the relation of Frank G. Clark, against Frank A. Smith, Judge of the Circuit Court of the Ninth Judicial Circuit of Florida, to show cause why an order should not issue requiring respondent to try the case of Frank G. Clark against Ward C Klingensmith.

Order in accordance with opinion.

COUNSEL

Fred S. Scott and Emory Akerman, both of Orlando for relator.

Crofton & Wilson, of Titusville, for respondent.

OPINION

BUFORD Justice.

This is an original proceeding in mandamus wherein it is sought to coerce the Hon. Frank A. Smith as Circuit Judge to 'show cause before this Honorable Court on or before ten o'clock in the forenoon on the 15th day of November, A. D. 1937, as to why an order should not issue from this Court requiring you to place the said case of Frank G. Clark vs Ward C. Klingensmith upon the docket of the next ensuing term of the Circuit Court of the 9th Judicial Circuit and thereupon to try the issue of fact as raised by the duly settled pleadings in the said case.'

Demurrer and motion to quash the alternative writ have been interposed.

The allegations of the alternative writ are not sufficient to show that the respondent did not act within the sound exercise of judicial discretion in granting the motion to dismiss complained of in the petition for alternative writ, which order was as follows:

'This cause came on to be further heard upon motion of defendant (respondent in quo warranto) to dismiss, which said motion was on the 17th day of September, 1937, filed in said cause and counsel for plaintiff, Fred S. Scott and Emory Akerman, and counsel for defendant, W. D. Wilson, being present in Court and having waived notice of final hearing on said motion and after argument of counsel for the respective parties and the Court being advised of the premises is hereby ordered, adjudged and decreed that said motion to dismiss be and the same is hereby granted.

'It is further ordered, adjudged and decreed that the respective parties shall pay their separate costs which have accrued in the Circuit Court in said cause.

'Done and ordered in Chambers at Orlando, Florida, this 17th day of September, A. D. 1937.

'Frank A. Smith, Circuit Judge.

'No. 15143

'Filed Sep 18 1937 at 1200 o'clock M

'Recorded in the Public Records of Brevard County Florida in the Book and page noted above.

'G. M. Simmons

'By J. Paul Conway, Deputy Clerk.

'[Ct.Ct.Seal.]'

There is no allegation in the alternative writ showing that the order above quoted was not one which the Circuit Judge had jurisdiction to make and enter at the time it was made and entered.

The relator relies on our opinion and judgment entered here on November 9th, 1936, reported at State ex rel. Clark v. Klingensmith, 126 Fla. 124, 170 So. 616, wherein we said [page 618]:

'The most appropriate method of settling issues of fact in a case like the present involving purely private rights is to follow the procedure adopted in State ex rel. Landis, Atty Gen., v. Gamble, 112 Fla. 2, 150 So. 130, by dismissing now the proceedings here without prejudice so that supplementary proceedings may...