State Ex Rel. Jennings v. Frederick

• Decision Date: 19 May 1939
• Citation: 189 So. 1,137 Fla. 773
• Court: Florida Supreme Court
• Parties: STATE ex rel. JENNINGS v. FREDERICK, Judge.

189 So. 1

137 Fla. 773

STATE ex rel. JENNINGS v. FREDERICK, Judge.

Florida Supreme Court, Division A.

May 19, 1939

Original proceeding by the State upon the relation of E. C. Jennings against H. B. Frederick, as Judge of the Seventh Judicial Circuit, in and for Volusia county, Fla., for a peremptory writ of mandamus commanding respondent to issue rule absolute in prohibition in a certain case or show cause why he refused to do so.

Motion denied, alternative writ quashed, and cause dismissed.

COUNSEL M. S. McGregor, of De Land, for relator.

Murray Sams, of De Land, for respondent.

OPINION

BUFORD Justice.

This matter is before us on motion for peremptory writ of mandamus where this Court issued alternative writ commanding respondent, 'Honorable H. B. Frederick as Judge of the Circuit Court of Volusia County, Florida, to issue rule absolute in prohibition in the case of State of Florida, upon the relation of E. C. Jennings, relator v. J. E. Peacock as County Judge in and for Volusia County, Florida, respondent now or heretofore pending in the Circuit Court of Volusia County, Florida, or show cause to the Supreme Court of Florida at Tallahassee, Florida on the 24th day of May, A. D 1938, at the hour of 10 o'clock why you refuse so to do.'

The record shows that this is the second phase of this case here. See State ex rel. Jennings v. Peacock, 126 Fla. 743 171 So. 821. After our mandate went down relator applied to Circuit Court for rule absolute in prohibition. Motion was denied and relator instituted the instant proceedings in mandamus here.

Return to the alternative writ shows,

'Respondent admits that this Court by its decision dated January 4, 1937, (126 Fla. 743, 171 So. 821) reversed the Judgment of the Circuit Court in and for Volusia County, Florida, in the case of State of Florida upon the relation of E. C. Jennings, against J. E. Peacock as County Judge in and for Volusia County, Florida, in Prohibition, and remanded said cause for further proceedings not inconsistent with the views of this Court in said decision expressed.

'Respondent further admits that after said decision was entered and filed, Mandate was issued out of this Court therein, and filed in the office of the Clerk of the Circuit Court in and for Volusia County, Florida.

'Respondent further answering denies that application and motion were presented to this respondent by relator for a Rule Absolute in Prohibition on or about the 12th day of February A. D. 1937; respondent further denies that Exhibit 'A' attached to the Alternative Writ is a true and correct copy of the motion which relator filed with respondent for a Rule Absolute in Prohibition and respondent further denies that relator in person or by his attorney ever submitted to respondent, the form as attached to the Alternative Writ marked Exhibit 'B' as Rule Absolute in Prohibition.

'Respondent further answering says: that Relator did no February 18, A. D. 1937, file with the Clerk of the Circuit Court in and for Volusia County, Florida, a motion to vacate order quashing petition and for Rule Absolute herein; that thereafter on March 15th A. D. 1937, relator submitted said motion to respondent for consideration for the first time; and that said motion was the only Motion to vacate Order Quashing Petition and for Rule Absolute that was ever filed in said cause, all of which fully appears from a certified copy of said motion attached hereto marked Exhibit 'A' and by these apt words made a part of this answer or return.

'Respondent further answering says: that the foregoing motion hereto attached as Exhibit 'A' differs from the motion attached as Exhibit 'A' to the Alternative Writ of Mandamus herein, in this, that the motion hereto attached contains the following language, to-wit:

"and commanding the said J. E. Peacock, as County Judge aforesaid, to restore the said pending suit to the status which obtained in said suit on the date the order of this Court was made discharging the rule nisi in prohibition to-wit, the 14th day of January, A. D. 1936,' as a part of paragraph 2 thereof, not contained or embraced in the copy of said motion attached as Exhibit 'A' to said Alternative Writ.

'Respondent further answering says: that after the filing of the aforesaid Motion to vacate Order Quashing Petition and for Rule Absolute in Prohibition shown as Exhibit 'A' of this Answer, for respondent's consideration in connection therewith the following papers were also filed, to-wit:

'(a) Certified copy of the Progress Docket of the County Judge's Court of Volusia County, Florida, in the case of Estelle Snowden, as agent of William E. Bird, Jr., plaintiff, against E. C. Jennings, defendant, Landlord and Tenant Proceedings, in which case the County Judge of said Court is, in and by these proceedings sought to be prohibited, as evidenced by certified copy thereof hereto attached marked Exhibit 'B' and by these apt words made a part of this answer or return.

'(b) Sworn objections of Honorable J. E. Peacock, as County Judge in and for Volusia County, Florida, who is the Judge in and by these proceedings sought to be prohibited as evidenced by certified copy of said objection hereto attached marked Exhibit 'C' and by these apt words made a part of this answer or return.

'4. Respondent further answering says that thereafter, after due notice, a full opportunity was afforded all parties in interest to be heard, and argument of counsel, it having been shown and made to appear,

'(1) That Respondent's Order of June 14th, A. D. 1936, in the case of State of Florida upon the relation

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