State Ex Rel. Woodward v. Lee

• Decision Date: 03 October 1934
• Citation: 156 So. 691,116 Fla. 742
• Parties: STATE ex rel. WOODWARD v. LEE, State Comptroller.
• Court: Florida Supreme Court

156 So. 691

116 Fla. 742

STATE ex rel. WOODWARD v. LEE, State Comptroller.

Florida Supreme Court

October 3, 1934

En Banc.

Mandamus proceeding by the State, on the relation of F. P. Woodward against J. M. Lee, as Comptroller. On motion of relator to strike answer and for peremptory writ.

Motion to strike denied in part and granted in part; motion for peremptory writ denied.

BROWN J., dissenting in part.

COUNSEL B. A. Meginniss, of Tallahassee, for relator.

H. E Oxford, of Lakeland, for respondent.

OPINION

PER CURIAM.

To the answer made by the respondent and filed July 11, 1934, the relator, by his counsel interposed a motion to strike and asked for the issuing of a peremptory writ.

On May 15, 1934, this court (155 So. 142) by order allowed the respondent ten days from the entry of the order in which to interpose an answer to the writ denying the material allegations of employment of the relator by the 'Assessment Board' for the period alleged, and that he has never been discharged by a majority vote of the board from such employment.

The answer does not meet the requirements of that order, but incumbers the record with many averments which may be evidentiary of respondent's contention that the relator was not employed by the assessment board, and that by consent and approval of a majority of the board he was discharged from the service of the state in the position of assessment engineer. The answer contains, however, in its entirety a denial of employment by the assessment board of the relator for a period of two years and a joinder of issue upon the allegation that relator was not discharged from his employment by a majority vote of the members of the board.

We conclude therefore to allow the answer to stand in so far as it amounts to a categorical denial of employment and an affirmative defense that the relator was relieved of his employment by and with the approval of a majority vote of the members of the board; that the case shall proceed to trial upon those issues. All evidentiary matter and other recitations and averments are stricken. The motion to strike is denied in so far as it sought to eliminate the two defenses as above stated and granted as to all other unnecessary and superfluous averments of evidentiary and other matters.

The motion for a peremptory writ is denied.

ELLIS, TERRELL, and BUFORD, JJ., and HUTCHISON, Circuit Judge, concur.

DAVIS, C.J., disqualified.

CONCURRING & DISSENTING

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

It is not always easy for the pleader to avoid alleging mere legal conclusions on the one hand or evidentiary facts on the other. This task might sometimes be likened, in its difficulty, to the traditional danger of attempting to sail between Scylla and Charybdis. Ordinarily rules of good pleading require that the allegations be confined to succinct statements of the ultimate facts which the pleader must prove in order to sustain his cause of action or defense avoiding allegations of the evidence by which he intends to prove such ultimate and essential facts. This rule is both important and reasonable, and, in theory, it sounds easy enough, but in practice compliance therewith is often not so easy. It frequently happens that such succinct and concise pleading of ultimate facts is attacked in the courts, and sometimes successfully, on the ground that the pleader is alleging legal conclusions or mere conclusions of the pleader. Parenthetically it might be observed that sometimes it is not possible to allege an ultimate fact without at the same time alleging a conclusion of the pleader; otherwise the pleader would be compelled to allege a vast number of particulars which go to make up the ultimate fact which must be concluded by the pleader to exist and result from the mass of particular facts which it will later be necessary to prove in order to sustain the ultimate fact thus alleged, and which 'ultimate fact,' though honestly alleged, may or may not be proven to have been a legitimate conclusion to be arrived at from a fair consideration of the many particularities or circumstances which may be shown in evidence in an effort to sustain the ultimate fact so alleged. If a concise pleading, alleging merely the ultimate facts, is attacked by the opposing party on the ground that it is a mere statement of legal conclusions or conclusions of the pleader, and this attack is sustained by the court, and the pleader amends by pleading his case more at length and with greater particularity, his amended pleading may sometimes be attacked on the ground that he is alleging mere evidentiary matter because good lawyers and able judges frequently differ on the questions thus raised. However, except in certain classes of cases, such as mandamus cases or cases where a pleading charges fraud and the rule requires that the facts be set out with considerable particularity, the tendency of the courts, which the writer thinks is justifiable, is to favor such conciseness in pleading the ultimate and essential as is possible without carrying such conciseness and succinctness to the extreme of alleging mere legal conclusions or conclusions of the pleader with such generality and vagueness as to leave the court guessing as to what essential facts the party really relies upon as constituting his cause of action or defense.

Now, in mandamus cases, our court has laid down some helpful rules of pleading the observance of which greatly facilitate the proper handling of such cases in the courts. Thus, this court has held that all defenses which a party has should be presented in his answer to the alternative writ, so that they may be determined before the peremptory writ is awarded. State ex rel. Burr v. Tavarse, etc., R. Co., 78 Fla 329, 82 So. 833. A return to an alternative writ of...