State Ex Rel. Clifton v. City of Daytona Beach

• Decision Date: 02 April 1934
• Citation: 114 Fla. 384,154 So. 165
• Court: Florida Supreme Court
• Parties: STATE ex rel. CLIFTON et al. v. CITY OF DAYTONA BEACH et al.

154 So. 165

114 Fla. 384

STATE ex rel. CLIFTON et al. v. CITY OF DAYTONA BEACH et al.

Florida Supreme Court

April 2, 1934

En Banc.

Error to Circuit Court, Volusia County; M. G. Rowe, Judge.

Mandamus proceeding by the State, on the relation of Ona Mary Clifton joined by her husband, Chester Clifton, for the purpose of the suit, against the City of Daytona Beach, a municipal corporation of Volusia County, and others. To review an order adverse to relators, they bring error.

Writ of error dismissed without prejudice.

COUNSEL Ray Selden, of Daytona Beach, for plaintiffs in error.

Millard B. Conklin, of Daytona Beach, for defendants in error.

OPINION

DAVIS Chief Justice.

In this case the writ of error should be dismissed for the following reasons: (1) An order quashing an alternative writ of mandamus is interlocutory and not final in character. Such an order consequently does not support a writ of error which lies only to a proper final judgment in a mandamus case. Such a final judgment would be one of dismissal of the proceeding predicated upon the court's order granting the motion to quash the alternative writ. But until the proceeding is finally dismissed and the respondents discharged, there is no final judgment, even though the original alternative writ has been quashed on motion.

(2) A mandamus proceeding is one at law, not a proceeding in chancery. An order quashing an alternative writ of mandamus has no place in the chancery order book. It should be recorded in the minutes of the circuit court as in law cases. In the present case the order granting a motion to quash an alternative writ of mandamus is made the subject-matter appealed from. It affirmatively appears in the transcript that such order was recorded only in the chancery order book and not in the circuit court's minutes as required by law, therefore, it has never been legally entered of record in the court below.

There being nothing to appeal from, the writ of error is dismissed but without prejudice to further appropriate proceedings in the circuit court accompanied by the proper substitution of any officials who may have been elected to succeed the officials originally named as respondents, it appearing that several changes have transpired with respect to the official status of respondents since the original order quashing the alternative writ of mandamus was entered.

Writ of error dismissed without prejudice.

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