State Ex Rel. Pearson v. Trammell

• Citation: 124 Fla. 543,169 So. 45
• Parties: STATE ex rel. PEARSON et al. v. TRAMMELL et al.
• Decision Date: 16 June 1936
• Court: United States State Supreme Court of Florida

169 So. 45

124 Fla. 543

STATE ex rel. PEARSON et al. v. TRAMMELL et al.

Florida Supreme Court

June 16, 1936

Original prohibition proceeding by the State, on the relation of Alura Blair Pearson and others, against Worth W. Trammell, as judge of the circuit court of the Eleventh judicial district of Florida in and for Dade county, and another.

Writ denied.

BROWN J., dissenting in part.

COUNSEL Hawthorne & Morehead, of Miami, and Waller &amp Pepper, of Tallahassee, for petitioners.

Shutts & Bowen and L. S. Julian, all of Miami, for respondents.

OPINION

PER CURIAM.

The facts of this controversy have been stated in the opinion of Mr. Justice Brown. We agree with his conclusion, but not with that feature of the opinion which holds the remedy by writ of prohibition improper in a case of this kind. Too many decisions of this court, notably Speight v. Horne, 101 Fla. 101, 133 So. 574 (ninth headnote) establish the rule to the contrary. Furthermore, as pointed out in the lastcited case, writ of error would not be an adequate remedy, because it would require the defendants, in seeking a writ of error, to enter a general appearance in the cause, whereas their object is to have the court cease trying to exercise jurisdiction over their persons on a service or appearance plainly inadequate to support the court's right to proceed against the objecting defendants.

In this case we concur in the conclusion that the rule nisi should not be made an absolute prohibition, because the motion filed by attorney Morehead to be permitted to withdraw his entry of appearance for the defendants Alura Blair Pearson and her husband is not self-supporting as against the circuit judge's ruling refusing to grant the motion, hence a bill of exceptions should have been taken before the respondent judge showing what, if any, proof was offered to prove the lack of authority of the attorney to appear, the authority of an attorney to appear being presumed prima facie and requiring contradictory proof to overturn it if not admitted to have been entered without authority. See Bishop v. Chillingworth, 114 Fla. 286, 154 So. 254.

Prohibition being the converse of mandamus in jurisdictional matters ( State ex rel. Garrett v. Johnson, 112 Fla. 112, 150 So. 239, 151 So. 315), a bill of exceptions showing the facts should be made up and filed as a part of the record upon which a prohibition is sought. This is so, because the court below, if prohibited, should be prohibited ordinarily upon what appears on the face of the record as a foundation for the prohibition absolute applied for.

Rule nisi discharged and writ of prohibition denied.

WHITFIELD, C, J., and ELLIS, TERRELL, BUFORD, and DAVIS, JJ., concur.

BROWN, J., dissents in part and concurs in judgment.

CONCURRING & DISSENTING

BROWN Justice (dissenting in part and concurring in judgment).

In June of 1935, Iris Snow instituted an action at law in the circuit court for Dade county and filed a praecipe for summons ad res against five persons, three of whom were duly served by the sheriff and two of whom, the petitioners in this case, were not served. The sheriff's return showed that they could not be found and it is alleged in the suggestion for writ of prohibition that these two persons, Alura Blair Pearson and her husband, were at the time and still are residents of the state of New York.

On July 1, 1935, a practicing attorney of the city of Miami filed his appearance as attorney for all five of the defendants.

On August 3, 1935, upon application made by counsel for plaintiff, an order was made extending the time for filing of declaration until August 20.

On August 17, 1935, the attorney who had filed the appearance for all of said defendants filed a motion alleging that the appearance in behalf of two of the defendants, petitioners in this case, was entered through inadvertance and mistake; and insisted that defendants had never been served with process, were not residents of this state, as appeared from the affidavit on file in the cause entered by associate counsel for plaintiffs, and that the undersigned attorney had no authority to file such appearance in the absence of service of summons upon said defendants, and was not requested so to do by the defendants. For these reasons, said attorney requested leave of the court to withdraw his appearance entered on behalf of said two defendants. This motion was signed by the attorney, but was not sworn to. The record does not show that any evidence was offered in support of it.

Declaration was filed in the case against all the defendants on August 19, 1935, which showed that the cause of action arose from an automobile accident in the state of Utah. The three defendants who had been served filed a demurrer to the declaration.

On January 20, 1936, the circuit judge entered an order, reciting that the cause had come on to be heard upon the motion of the attorney for leave to withdraw his appearance in behalf of Alura Blair Pearson and her husband and that the matter had been argued by counsel for the respective parties; which order denied the motion and allowed said defendants until February 10 in which to plead as they might be advised.

Suggestion for the writ of prohibition sets up the above facts and alleges that the said circuit judge is about to exceed the jurisdiction of the said court and usurp jurisdiction not vested in said court by assuming jurisdiction over said two defendants who had not been served with summons and who had...