State ex rel. Cox v. Adams
| Decision Date | 07 November 1941 |
| Parties | STATE ex rel. COX v. ADAMS, Circuit Judge. |
| Court | Florida Supreme Court |
John R. Parkhill, of Tampa, for relator.
Hal W Adams, of Mayo, in pro. per. and Byron Butler, of Perry, and A. K. Black, of Lake City, for respondent Mildred N Cox.
This cause is an original proceeding in prohibition and is now before us on motion for writ absolute, notwithstanding respondent's return.
The petition for alternative writ alleges:
'1. That at all times herein mentioned including the present time, relator was and is an actual and bona fide resident, citizen and taxpayer of Hillsborough County, Florida.
'2. That on to-wit, December 13, 1940, A. K. Black, as State Attorney of the Circuit Court of the Third Judicial Circuit of the State of Florida, filed a direct information against relator in the Circuit Court of Lafayette County, Florida, charging him with having committed perjury on August 3, 1938, in said county.
'The information thus showed on its face that the criminal prosecution sought to be maintained therein was barred by the Statute of Limitations of Florida applicable to criminal prosecutions.
'A certified copy of said information is attached hereto as exhibit 'A' and by reference made a part thereof.
'3. Relator was arrested on a capias based on said information in Tampa Hillsborough County, Florida, on to-wit, December 16, 1940 and at such time gave an appearance bond, the terms of which called for his appearance in said Circuit Court in Lafayette County, Florida, on January 3, 1941.
'Thereafter, on January 3, 1941, relator left Hillsborough County, Florida of which he was a resident as aforesaid and travelled to Lafayette County, Florida, and appeared in said Court to plead to the said information.
'While in open court before the said Hal W. Adams as said Circuit Judge while pleading to said information relator was served by the Sheriff of Lafayette County, Florida, with a summons ad respondendum in an equity suit which had been instituted in said Circuit Court on to-wit January 2, 1941.
'Said suit was an action for separate maintenance brought by Mildred N. Cox against the relator, and is the same action or proceedings which is sought to be restrained herein.
'4. The said A. K. Black who, as State Attorney aforesaid, and who, as such State Attorney, filed said information against relator, was solicitor for the said Mildred N. Cox in said suit for separate maintenance and has been her solicitor ever since in said suit, notwithstanding that he had instituted a criminal prosecution against relator as heretofore shown.
'5. The said criminal prosecution against relator was dismissed by order of the said Circuit Judge after relator had been served with process as aforesaid, and relator was discharged from custody.
'6. Relator thereafter filed a special appearance to the bill of complaint filed in said separate maintenance suit and set forth therein the foregoing facts, and moved the Court therein to quash the service of said process, on the ground that he was immune from the service of the process while in said open court as aforesaid.
'A hearing was held on said Special Appearance and on to-wit, August 30, 1941, said Circuit Court overruled and denied said Special Appearance and ordered relator to file an answer to said bill of complaint on or before September 22, 1941.
'7. Said Circuit Court has no jurisdiction over relator because as heretofore shown, he has never been legally and lawfully served with process because at the time process was served upon him he was immune from service of process until after he had returned to Hillsborough County, Florida, because under the common law and the Law of Florida, when a person leaves the county of his residence and goes into another county in attendance upon a court of the latter county, he is immune from the service of any kind of process, civil or criminal, while in court and until a reasonable time thereafter within which to return to the County of his residence.
'8. Unless said Circuit Court is prohibited from proceeding with said suit he will proceed to make orders therein prejudicial to relator and will order relator to pay alimony and solicitor's fees which he has no lawful right to do.'
Rule nisi issued and respondent answered not controverting the allegations of the petition but showing the status of the...
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