State ex rel. North St. Lucie River Drainage Dist. v. Kanner

• Decision Date: 19 February 1943
• Citation: 11 So.2d 889,152 Fla. 400
• Parties: STATE ex rel. NORTH ST. LUCIE RIVER DRAINAGE DIST. et al. v. KANNER.
• Court: Florida Supreme Court

11 So.2d 889

152 Fla. 400

STATE ex rel. NORTH ST. LUCIE RIVER DRAINAGE DIST. et al. v. KANNER.

Florida Supreme Court

February 19, 1943

Rehearing Denied March 3, 1943.

Walker Liddon and Fee & Liddon, both of Ft. Pierce for relators.

A. O Kanner, of Stuart, in pro. per.

BROWN, Justice.

This is a mandamus proceeding, the object of which is to compel Hon. A. O Kanner, one of the Circuit Judges of the Ninth Judicial Circuit, to enter a decree pro confesso against certain lands described in a bill brought to foreclose delinquent drainage taxes under Chapter 21003, Acts of 1941, now appearing as Section 298.75, Florida Statutes of 1941. The relators, in their petition for the alternative writ, allege that they filed said bill of complaint for the foreclosure of delinquent drainage taxes against certain described lands within the boundaries of said drainage district on August 29 1942, and on the same day filed a lis pendens against said lands, and that on November 23, 1942, relators filed before Judge Kanner a motion for a decree pro confesso, setting forth that no appearance or intervention had been filed in said suit and moving said respondent to enter a decree pro confesso against the lands involved in said suit. That on November 24, 1942, the respondent Judge entered an order denying the motion on the ground that the procedure prescribed by the statute, under which relators had brought said suit, does not afford due process of law. This court issued an alternative writ directed to the respondent to show cause why a peremptory writ should not issue, and an answer was filed thereto by the respondent Judge from which we quote the following:

'That he admits the allegations of the said alternative writ, except he denies he has acquired jurisdiction of the subject matter of the cause, because of the matters and things hereinafter set forth:

'This respondent asserts that no process or notice or any kind has been issued, published, given or served, nor any appearance, intervention, or defense interposed; and that the only pleadings filed were those by the relator, to-wit, bill of complaint, notice of lis pendens, motion for order of dismissal as to certain lands, and the motion for decree pro confesso. No statement is contained in such pleadings of relator of a time to appear or defend.

'That the relator predicates its authority on the provision of the statute, Section 298.75, Florida Statutes, 1941, Chapter 21003, General Acts, 1941, 'All persons interested in any land involved in a suit in chancery to enforce liens for delinquent drainage taxes shall be deemed to take notice of the levy, assessment and delinquency of such taxes and of suits to enforce the same; * * *.', to effectuate service and to give this respondent jurisdiction.

'This respondent admits that the relator has complied with the quoted essentials of the statute--that is, brought its suit by filing bill or complaint, which bill shows a levy, assessment and delinquency of the taxes involved--but he says that the mode prescribed by such statute, although fulfilled, does not afford 'due process of law,' in that it is violative of the Constitution of the United States, Amendment 14, and of the Constitution of the State of Florida, Declaration of Rights, Section 12. Hence this respondent declined, and still declines to enter the decree pro confesso applied for by the relator.'

The relators filed a motion for the peremptory writ notwithstanding the return of respondent and the case is now before us for final disposition.

It is well settled that mandamus is the proper remedy to compel a court to exercise its jurisdiction when such court possesses jurisdiction and refuses to exercise it, but mandamus cannot be maintained to control or direct the manner in which such court shall act in the lawful exercise of its jurisdiction. In other words, this court can compel an inferior court to act in the exercise of its lawful jurisdiction, but it cannot direct how it should act. If such action turns out to be erroneous, the aggrieved party can obtain a review thereof on appeal. Such is the general rule.

But there are certain exceptions to this rule in cases where the act sought to be compelled is...