State ex rel. Tobin v. Holt, 59-662

• Decision Date: 07 January 1960
• Docket Number: No. 59-662,59-662
• Citation: 117 So.2d 428
• Parties: STATE of Florida ex rel. Samuel H. TOBIN and Joseph Norwood, Relators, v. George E. HOLT, as Judge of the Circuit Court of the Eleventh Judicial Circuit of Florida, Deauville Reality Co., Inc., and Deauville Enterprises, Inc., Respondents.
• Court: Florida District Court of Appeals

Page 428

117 So.2d 428

STATE of Florida ex rel. Samuel H. TOBIN and Joseph Norwood, Relators, v. George E. HOLT, as Judge of the Circuit Court of the Eleventh Judicial Circuit of Florida, Deauville Reality Co., Inc., and Deauville Enterprises, Inc., Respondents.

No. 59-662.

District Court of Appeal of Florida, Third District.

Jan. 7, 1960.

Rehearing Denied Feb. 9, 1960.

Don G. Nicholson and Hollis Rinehart, Miami, for relators.

Rothenberg, Burris & Englander, Miami Beach, for respondents.

PER CURIAM.

This is an original proceeding in this court in mandamus. The object of the alternative writ was to require the respondent trial judge to vacate an order which he had entered staying execution, setting aside the judgment which had been entered by the trial court and affirmed by this court, and ordering a new trial. The alternative writ of mandamus disclosed the following prior proceedings:

The cause, Samuel H. Tobin vs. Deauville Realty Co., Inc., and Deauville Enterprises, Inc. was tried in the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida and judgment rendered after a jury trial presided over by the Honorable Pat Cannon, circuit judge. An appeal from the final judgment was heard in this court and an order affirming the judgment was filed March 10, 1959. ¹ Petition for rehearing was denied March 30, 1959. Subsequent to the affirmance of the judgment and the denial of petition for rehearing the appellants filed in this court and in that same appeal a motion which was entitled 'motion to suspend or abate appellate proceedings and remand cause to trial court in light of newly discovered evidence.' Attached to this motion was a photostatic copy of a letter dated April 14, 1955, consisting of two pages each purporting to be signed by Joseph Norwood, one of the appellees. In the motion the appellant contended that the letter conclusively established that appellee, Norwood, had committed perjury during the trial of the cause and that because of the newly discovered letter this court should remand the cause to the trial court for further consideration of a motion for new trial in the light of the allegedly newly discovered evidence and the alleged perjury. After a hearing, this court denied the extraordinary petition, pursuant to an opinion of this court which recited that the extraordinary petition for rehearing was considered in the nature of an application for writ of error coram nobis. ² In said opinion it was pointed out that under the allegations of the petition the letter was not shown to be newly discovered evidence but on the contrary was forgotten evidence now newly remembered.

Subsequent to the decision and the two opinions of this court as above noted, the present respondent, Deauville, filed a petition for writ of certiorari in the Supreme Court of Florida. The affirmance of the judgment of the trial court on March 10, 1959, and the denial of the extraordinary petition on May 14, 1959, where each set forth as grounds for the issuance of the writ of certiorari. This petition for writ of certiorari was denied. ³ The order of the Supreme Court denying the petition for certiorari evinces that the opinion of this court reported at 109 So.2d 602 and the opinion of this court upon the extraordinary petition, reported at 111 So.2d 743 were examined. Following that denial of certiorari by the Supreme Court, this Court's mandate to the circuit court was issued.

Thereafter, nevertheless, the respondent Deauville proceeded in the trial court under section 55.38, Fla.Stat., F.S.A., ⁴ for stay of execution, execution having been issued by the clerk of the Circuit Court for Dade County on September 29, 1959. The motion for stay of execution again prayed for an order vacating the final judgment. The basis for the motion was the same letter which had formed the basis for the extraordinary motion which had been filed in this court after the appeal. Simultaneously with filing the motion for stay of execution the movants therein filed a motion for disqualification of the Honorable Pat Cannon, circuit judge. The circuit judge having refused the motion to recuse himself the movant filed in this court an original suggestion for writ of prohibition wherein it was prayed that the Honorable Pat Cannon, circuit judge, be restrained from further proceedings in the cause. After the issuance of the rule nisi and the filing of the return of respondent and hearing, this court ordered that the rule nisi be made absolute and issued the writ of prohibition. ⁵ The former appellant and petitioner for stay of execution took the motion to the Senior Circuit Judge, the Honorable George E. Holt, in the absence of the presiding Circuit Judge for the Eleventh Judicial Circuit, requesting said circuit judge to make a reassignment of the case to another circuit judge.

The case was reassigned to another judge of the Eleventh Judicial Circuit, and, during temporary absence of the latter, the motion for stay of execution was presented to the Honorable George E. Holt, a judge of said court who was the designated alternate for the judge to whom the cause was reassigned. After hearing argument on the motion for stay of execution, Judge Holt determined that the circuit judge who had presided at the trial had been prejudiced during the trial of the cause, and that not only should the stay of execution be granted but that the judgment should be set aside for a new trial.

Judge Holt then entered the order which is the subject of the mandamus action, being dated and filed October 23, 1959, and recorded in Minute Book 427, page 207, in which it was ordered as follows:

'1. Execution under the judgment entered in the above cause is permanently stayed, and the levy made by the Metropolitan Sheriff of Dade County, Florida, under said execution, against property of defendants, Deauville Realty Co., Inc. and Deauville Enterprises, Inc., is cancelled and vacated, and the sale of said property scheduled for vember 2, 1959, pursuant to said levy, is cancelled and permanently stayed.

'2. The judgment heretofore entered in this cause, dated May 12, 1958, and recorded May 13, 1958, in Circuit Court Minute Book 370 at Page 361, in the office of the Clerk of this Court, Joseph Norwood, and against defendants Deauville Realty Co., Inc. and Deauville Enterprises, Inc. is cancelled and vacated.

'3. The above cause is remanded to the Jury Trial Docket of Marshall C. Wiseheart, Circuit Judge for further proceedings.'

The respondents filed their answer to the alternative writ of mandamus in which they incorporated a motion to quash. The answer advanced several contentions in response to the allegations of the alternative writ. First, that the judgment was obtained by perjured testimony which could be established by newly discovered evidence or other evidence available; second, that the circuit judge who tried the case, the Honorable Pat Cannon, was prejudiced against the defendants and that he had admitted his prejudice; ⁶ third, that the court had committed certain errors at the trial relating to rulings on evidence as to the amount of the brokerage commission; and, fourth, that under § 55.38, Fla.Stat., F.S.A., the court was entitled to prevent execution of the judgment for such reasons. The relator moved for peremptory writ notwithstanding the answer, and the matter then came on for argument before this court.

We hold that the motion to quash as contained in the answer was not well taken and should be denied; that the answer of the respondents failed to assers any sufficient defense to the allegations of the writ, and that the relators are entitled to judgment and a peremptory writ of mandamus. This is so because of the well established rule that after a judgment has been appealed and affirmed, and the mandate of the appellate court has been issued, the trial court has no...