State Ex Rel. Mizner Land Corp. v. Gray

• Citation: 157 So. 663,117 Fla. 294
• Parties: STATE ex rel. MIZNER LAND CORPORATION v. GRAY, Circuit Judge.
• Decision Date: 21 November 1934
• Court: United States State Supreme Court of Florida

157 So. 663

117 Fla. 294

STATE ex rel. MIZNER LAND CORPORATION v. GRAY, Circuit Judge.

Florida Supreme Court

November 21, 1934

En Banc.

Original proceeding in mandamus by the State, on the relation of the Mizner Land Corporation and others, against De Witt T. Gray as Judge of the Fifteenth Judicial Circuit, to compel the respondent to vacate an order certifying to his own disqualification to hear cases pending before him.

Motion to quash alternative writ denied.

COUNSEL Daniel & Thompson, of Jacksonville, for relators.

Milam McIlvaine & Milam, of Jacksonville, for respondent.

OPINION

PER CURIAM.

This is a proceeding in mandamus to coerce the respondent De Witt T Gray, as specially designated chancellor for certain causes pending in the circuit court of the Fifteenth judicial circuit of Florida, to vacate and set aside an order certifying to his own disqualification entered by him in the pending causes, and to resume, retain, and exercise jurisdiction of the same by proceeding to hear and determine the issues therein pending.

The order of disqualification sought to be vacated was entered under section 4341, Comp. Gen. Laws, section 2674, Rev. Gen St., and is in substance the following:

'Order of Disqualification

'It appearing that a motion and suggestion for disqualification of the undersigned Circuit Judge on the ground of bias and prejudice was filed in the above entitled causes on the 25th day of September, A. D. 1934, and that the same is in such form as that this order should now be made.

'It is ordered and adjudged that said motion be and the same is hereby granted and that the undersigned is hereby disqualified from further acting in said cause.

'Done and ordered this 15th day of October, A. D. 1934.

'DeWitt T. Gray, Circuit Judge.'

As appears from the foregoing order, the circuit judge simply 'granted' the statutory motion of the challenging defendant praying for said judge to certify to his own statutory disqualification under section 4341, Comp. Gen. Laws, supra. He did not certify to his disqualification on the ground of any personal prejudice in fact. So the proposition to be decided is whether the provisions of the statute relating to challenge of judges on the ground of prejudice warranted the making of the order.

It appears by the record that, prior to the time the affidavit and application to disqualify Judge Gray was filed in the instance above referred to, said judge had without objection exercised jurisdiction in the pending causes for about three years. Respondent is not the resident judge of the Fifteenth judicial circuit, but simply a judge designated by the Governor under chapter 16053, Acts of 1933, to act for the resident judge of the Fifteenth judicial circuit in these particularly involved cases. For good and sufficient causes the Governor may exercise his discretion to recall Judge Gray's present designation to act in the pending cases, but, until the Governor so directs, the statutes impose the duty on Judge Gray to function, unless he is disqualified for prejudice in fact, or the statute has been legally and properly invoked as a means of challenge against him, whether actually prejudiced or not.

We hold that, after a circuit judge has exercised jurisdiction over a chancery cause without objection for a long period of time his jurisdiction cannot be ousted under section 4341, Comp. Gen. Laws, section 2674, Rev. Gen. St., by a suggestion of disqualification alleging the statutory disqualification of prejudice, unless it be alleged and shown that the delay in filing the suggestion is legally excusable because due to the fact that the causes alleged as grounds of disqualification were not earlier known by the Challenger or...