State ex rel. Ware v. City of Miami

• Decision Date: 23 October 1958
• Docket Number: No. 58-445,58-445
• Citation: 107 So.2d 385
• Parties: STATE of Florida ex rel. Lorene WARE d/b/a Lullaby Nursery, and Eve Altman d/b/a My Lucky Starlet Kindergarten Nursery, Appellants, v. CITY OF MIAMI, Appellee.
• Court: Florida District Court of Appeals

Page 385

107 So.2d 385

STATE of Florida ex rel. Lorene WARE d/b/a Lullaby Nursery, and Eve Altman d/b/a My Lucky Starlet Kindergarten Nursery, Appellants, v. CITY OF MIAMI, Appellee.

No. 58-445.

District Court of Appeal of Florida, Third District.

Oct. 23, 1958.

Robert H. Givens, Jr., Miami, for appellants.

William L. Pallot and Edward J. Fitzpatrick, Miami, for appellee.

CARROLL, CHAS., Chief Judge.

The appellee has moved to dismiss the appeal taken to this court, from an order quashing an alternative writ of mandamus, as lacking finality essential for appeal. The motion must be denied.

In the mandamus action in the circuit court the relator moved for the issuance of a peremptory writ notwithstanding the return. After hearing thereon the court made the following order:

'This cause is before the Court on motion for peremptory writ notwithstanding return. The only issue involved is the validity of subparagraph (d) of subsection 6.2 of City of Miami Ordinance No. 5651, as amended by Ordinance No. 5879. After considering said motion and hearing the arguments of council, it is

'Ordered and Adjudged that said motion be denied and that the alternative writ of mandamus heretofore issued be quashed.'

In moving to dismiss, appellee cited State ex rel. Clifton v. City of Daytona Beach, 114 Fla. 384, 154 So. 165, in which the Supreme Court held that an order granting a motion to quash an alternative writ of mandamus was interlocutory and not final in character, saying: 'Such a final judgment would be one of dismissal of the proceeding predicated upon the court's order granting the motion to quash the alternative writ. But until the proceeding is finally dismissed and the respondents discharged, there is no final judgment, even though the original alternative writ has been quashed on motion.' That holding, that an order quashing an alternative writ on granting a motion to quash is not a final judgment in mandamus, was followed in State ex rel. Collins v. Rogers, 139 Fla. 557, 190 So. 701. See also Goodrich and Cone, Mandamus in Florida, 4 U.Fla.L.Rev. 535, 543. Cf. State ex rel. Rhodes v. Goodson, 65 Fla. 475, 62 So. 481.

In opposing the motion appellant argues that an order or judgment quashing an alternative writ, when entered on consideration of a motion for peremptory writ notwithstanding the return, is a final disposition of the case and amounts to a final judgment. We find appellants' position in that respect is supported by the authorities.

While there seems little basis for such...