State v. Atkinson

Decision Date30 May 1929
Citation97 Fla. 1032,122 So. 794
PartiesSTATE ex rel. TRUSTEES REALTY CO. v. ATKINSON, Circuit Judge.
CourtFlorida Supreme Court
En Banc.

Original mandamus by the State, on the relation of Trustees Realty Company, against H. F. Atkinson, Circuit Judge.

Alternative writ quashed.

Syllabus by the Court

SYLLABUS

Mandamus does not lie to require issuance of process involving judicial discretion of circuit judge, remedy by appeal existing; circuit judge cannot be required by mandamus to order publication of notice to appear in cause on refusal thereof after considering application on merits. Mandamus is not the proper remedy, where the act commanded to be done concerns, not a ministerial duty of issuing process involving no discretion, but the act involves to a certain extent judicial discretion of a circuit judge, and the relator has a remedy by appeal from the interlocutory order in chancery denying an application for an order for publication of notice to appear in the cause, when the action of the judge complained of is not a refusal to entertain or to exercise jurisdiction, but a denial of the order asked for after jurisdiction has been exercised by considering the application on its merits and refusing to make the order.

COUNSEL

Robert M. Thomson, of Miami, for relator.

Edith M. Atkinson, of Miami, for respondent.

OPINION

WHITFIELD J.

An alternative writ of mandamus issued by this court alleges that in an application for process in a chancery cause an affidavit states that the residence or residences of the defendants 'are unknown to the complainant and to affiant,' the respondent circuit judge 'refused to make' an order for the publication of notice for defendants to appear in the cause. The writ commanded the circuit judge 'to enter the aforesaid order of publication,' or show cause, etc.

A motion to quash contains grounds that the affidavit does not comply with the statute and is insufficient, in that affiant fails to state whether said defendants are residents of a state or county other than the state of Florida nor does affiant state in said affidavit that said defendants are residents of the state of Florida. Not waiving the motion to quash, the respondent avers that the order for publication of notice would have been made had the affidavit complied with the requirements of section 4895, Compiled General Laws 1927, section 3111, Revised General Statutes 1920.

The legal sufficiency of an affidavit made in an application for an order for the publication of notice to the defendant to appear in a chancery suit, which affidavit states 'that the places of residence of' the defendants 'are unknown,' without other averments as to the residence of the defendants, is considered and determined in the opinion of the court prepared by Mr. Justice Strum in the case of Artin Balian et al. v. Wekiwa Ranch (filed May 29, 1929) 97 Fla. 180, 122 So. 559. See, also, Blake v. Zittrouer (D. C.) 1 F. (2d) 496; Broward Estates v. Hon. C. E. Chilingworth et al., 93 Fla. 366, 112 So. 64.

The alternative writ should be quashed because the discretionary writ of mandamus is not the proper remedy where, as here, the act commanded to be done concerns, not a ministerial act of issuing process involving no discretion, but the act involves to a certain extent judicial discretion of a circuit judge, see McDaniel v. McElvy, 91 Fla. 770, 108 So. 820, 51 A. L. R. 731; and the relator has a remedy by appeal from the interlocutory order in chancery denying an application for an order for publication of notice to appear in a cause, when the action of the judge complained of is not a refusal to entertain or to exercise jurisdiction, but a denial of the order asked for after jurisdiction has been exercised by considering the application on its merits and refusing to make the order, see State ex rel. Helen S. Burbridge v. Call, 41 Fla. 450, 26 So. 1016; State v. Wolfe, 58 Fla. 523, 50 So. 511; Welch v. State ex rel. Johnson, 85 Fla. 264, 95 So. 751; State ex rel. v. Chillingworth, Judge, 116 So. 633, filed this term; Tibbetts v. Olson, 91 Fla. 824, 108 So. 679, an appeal from an order denying an order of publication.

In Broward Estates Corporation v. Chilingworth, Judge, 93 Fla. 366, 112 So. 64, a writ of mandamus was denied, though the action of the circuit judge in refusing an order for the publication of notice to defendants to appear in a chancery cause was considered and approved. State ex rel. Matheson v. King, 32 Fla. 416, 13 So. 891.

The alternative writ should be quashed as not being the proper remedy, as appears on a consideration of the entire record.

TERRELL, C.J., and BROWN, J., concur.

ELLIS and BUFORD, JJ., concur in the conclusion.

CONCURRING

ELLIS J.

An alternative writ of mandamus was issued by this court commanding Hon. H. F. Atkinson, judge of the Eleventh judicial circuit of Florida, to 'enter an order of publication' in a cause instituted in the circuit court for Dade county, by Trustees Realty Company, a Florida corporation, against Howard H. Gilbert and others, or that the respondent appear and show cause why he refuses to do so.

The writ alleges that the Trustees Realty Company exhibited its bill in the circuit court for Dade county against Gilbert, his wife, and others, for an 'accounting and for foreclosure of mortgage against certain real estate' in Dade county. The mortgage was executed by Gilbert and his wife to South Florida Mortgage Company and by it assigned to Trustees Realty Company.

It is alleged that the relator filed its affidavit in the office of the clerk of the court and presented an 'order of publication' to Judge Atkinson and requested him 'to make an order against said defendants,' Gilbert and wife, but the judge refused to 'make said order.'

The relator sought to obtain an order for the substituted service or service by publication for which provision is made by section 3111, Revised General Statutes 1920, section 4895, Comp. Gen. Laws 1927.

The affidavit which was filed in the clerk's office is in the following words:

'In the Circuit Court of the Eleventh Judicial Circuit of Florida in and for Dade County in Chancery. No. 26476-B.
'Trustees Realty Company, a Corporation Organized under the Laws of the State of Florida, Complainant,

vs.

Howard H. Gilbert et al., Defendants.

Affidavit for Publication.

'State of Florida, County of Dade--ss.:

'Before me, the undersigned authority, personally appeared H. R. Bash, who, being first duly sworn upon his oath, says that he is Secretary of the Complainant corporation; and for and on behalf of said corporation, says that the residence or residences of said defendants, Howard H. Gilbert and Harriet Z. Gilbert, his wife, are unknown to the Complainant and to this Affiant; that there is no person in the State of Florida, the service of a subpoena upon whom would bind such defendants; that it is the belief of this Affiant that said Defendants are each over the age of twenty-one (21) years.

'Further this affiant sayeth not.

'H. R. Bash, Affiant.

'Subscribed and sworn to before me this 27 day of March, A. D. 1929. Sallie Lee VanArsdall, Notary Public, State of Florida, at Large. [Notary Public Seal.] My commission expires: 5/16/32.'

Section 3111, Revised General Statutes, is as follows:

'Whenever the complainant, his agent or attorney, shall state in a sworn bill or affidavit, duly filed, the belief of the affiant that the defendant is a resident of a State or Country other than this State, specifying as particularly as may be known to affiant such residence, or that his residence is unknown, or that, if a resident, he has been absent more than sixty days next preceding the application for the order of publication, and that there is no person in the State the service of a subpoena upon whom would bind such defendant, or that he conceals himself so that the process cannot be served upon him, and further states the belief of the affiant as to the age of the defendant being over or under 21 years, or that his age is unknown, the judge or clerk of the court in which such bill shall have been filed shall make an order against the defendant requiring to appear to the bill upon a day to be fixed by the order, not less than thirty nor more than fifty days from the time of the making of the order, if he be stated therein to be a resident of the United States, and not less than fifty nor more than eighty days if he be stated to be a non-resident of the United States, or if his residence be stated as unknown. For the purpose of this action, the insular possessions of the United States shall be regarded as foreign countries.'

It appears from the affidavit that the complainant is a corporation; that the affidavit was not made by the complainant, its agent or its attorney, but it is made by one describing himself as 'Secretary of the Complainant Corporation' and swears 'for and on behalf' of the corporation. No seal of the corporation is affixed to the affidavit, and as to the places of residence of Gilbert and his wife it contains the bald statement in the words of the statute that the 'residence or residences of said defendants,' naming them, 'are unknown,' to which are added the words 'to the complainant and this affiant.'

The further statement is made, in the exact words of the statute, 'that there is no person in the State of Florida the service of a subpoena upon whom would bind the defendants.' It further states the belief of the affiant that the defendants are each over the age of 21 years.

The affidavit contains no averments of fact upon which the court could exercise its judgment as to whether the defendants were in fact nonresidents of the state; whether their places of residence, if within the state, were...

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