State v. Cornelius

• Decision Date: 26 July 1930
• Citation: 100 Fla. 292,129 So. 752
• Parties: STATE ex rel. GLOBE & RUTGERS FIRE INS. CO. v. CORNELIUS, Judge.
• Court: Florida Supreme Court

129 So. 752

100 Fla. 292

STATE ex rel. GLOBE & RUTGERS FIRE INS. CO. v. CORNELIUS, Judge.

Florida Supreme Court

July 26, 1930

Commissioners' Decision.

Error to Circuit Court, Hillsborough County; F. M. Robles, Judge.

Mandamus proceedings by the State of Florida, on the relation of the Globe & Rutgers Fire Insurance Company, against G. H Cornelius, as Judge of the County Court in and for Hillsborough County. From a final order of the circuit court dismissing on demurrer and motion to quash an alternative writ of mandamus theretofore granted requiring county judge to forthwith proceed to settle a certain bill of exceptions or show cause why he failed to do so in a case wherein Norman V. Peterson and others were plaintiffs and the Globe &amp Rutgers Fire Insurance Company was defendant, petitioner brings error.

Order reversed, with directions.

COUNSEL

Hampton & Bull, of Tampa, for plaintiff in error.

Jordan & Hill, of Tampa, for defendant in error.

OPINION

ANDREWS C.

This case is here upon writ of error taken to a final order of the circuit court of Hillsborough County dismissing the proceedings after granting a motion to quash, an alternative writ of mandamus theretofore granted and issued by said court requiring the county judge of said county to forthwith proceed to settle a certain bill of exceptions as of October 16, 1928, or show cause why he had failed to do so, in a case wherein Norman V Peterson et al. were plaintiffs and the Globe & Rutgers Fire Insurance Company was defendant.

The alternative writ of mandamus, as amended, sets forth that a verdict was rendered against the defendant Globe & Rutgers Fire Insurance Company, and that within the time required by law, a motion for new trial was presented, and at a hearing thereon held on August 17, 1928, the trial court disposed of said motion as follows:

'Motion denied this 17th day of August, 1928.

'Exception noted. Defendant allowed sixty days to settle bill of exceptions.'

That thereafter said defendant prepared and presented a proposed bill of exceptions to the judge of the trial court who indorsed the same as follows:

'Presented this 16th day of October, A. D. 1928.

'G. H. Cornelius, Judge.'

That said judge was unable to hear the same at the time, and thereafter, said defendant having ascertained when the settlement of said bill of exceptions could be heard, reasonable notice was served upon the opposite party and the application came on for hearing, whereupon on November 16, 1928, the same was denied, and the trial court assigned the following reasons for refusing to settle and sign the bill of exceptions:

(1) Because said bill of exceptions was not presented for authentication and signature within the time allowed by said order 'after serving a copy of its assignment of errors together with reasonable notice of the application for settling' same; and

(2) Because, the testimony not having been taken down by a reporter, the court 'has no recollection of the testimony set forth in said bill of exceptions.'

That petitioner was unable to locate or ascertain the names of any bystanders who were present in said court at the trial of said cause, and upon information and belief petitioner alleges that there were no bystanders present at the trial of said cause; that petitioner prepared bill of exceptions containing a true statement of the testimony, which testimony was very brief, consisting of five typewritten pages and involving principally the refusal of the said court to file in evidence a registry return receipt giving notice of cancellation of said policy of insurance and containing the testimony of two witnesses for plaintiff and one witness for defendant; that petitioner exhibited that portion of the testimony relating to the introduction of the said registry receipt, the ruling upon which was the sole error complained of, to the trial judge before incorporating said testimony into the bill of exceptions, and said trial judge 'admitted said testimony was substantially correct.'

On January 10, 1929, the circuit judge entered an order sustaining the demurrer to and the motion to quash the alternative writ of mandamus and thereupon dismissed the proceeding at the costs of petitioner.

The demurrer in substance states: That it appears that parties plaintiff in the original suit are not parties to the mandamus proceeding; that it is shown by the writ as amended that it would require the county judge to exercise his judicial discretion; that the bill of exceptions was not presented to the county judge for settling and authentication within the time allowed by the special order set forth in said writ; that the writ as amended does not show that a copy of the assignment of errors incorporated in said bill of exceptions with reasonable notice of the application for the settling of such bill of exceptions was served upon plaintiffs or their attorneys; and that petitioner has adequate remedy at law.

One of the issues raised by the demurrer is that the parties plaintiff to the original suit were not made parties to the mandamus proceeding. Assuming that the former plaintiffs should have been made parties to this suit, it could hardly be maintained that the substantial rights of said plaintiffs are not taken care of where it is shown that the motion to quash and the demurrer was presented and prevailed. 'The writ must be served upon the individual or individuals who are required to perform the duty commanded.' 38 C.J. 912, § 664; 13 Ency. of Pleading and Practice 646; High's Extraordinary Legal Remedies (3d Ed.) § 446. The person or body whose duty it is to perform the act sought to be enforced by mandamus is a necessary party respondent; and persons who are not required by law to perform the act sought to be enforced are not necessary, although they may be proper, parties. 38 C.J. 848, § 554; 38 C.J. 910, § 657. The duty was commanded of the trial court in the mandamus suit in this case and the plaintiffs in the former case are merely incidental.

Another ground of the demurrer questions the authority to require by mandamus the county judge to exercise his judicial discretion. While the writ will not issue to control a matter of judicial discretion or to require a judge to act in a particular way, yet where the discretion of a court can be legally exercised in only one way, mandamus will lie to compel the court so to exercise it. 38 C.J. 608, § 85; see also Crandall's Florida Common Law Practice, 641, 642; Ferris on Extraordinary Legal Remedies, pp. 400 and 401.

'The power of compelling an inferior court of law to sign and seal a bill of exceptions is now freely exercised by the courts of law of last resort in this country, even in those states where a separate chancery system still prevails. And when the court of final resort of a state has a general superintendence over all inferior courts, and is bound to enforce obedience to the laws of the state and to compel subordinate courts to perform the duties legally incumbent upon them the granting of the writ to compel the signing or amending of bills of exceptions may be regarded as falling naturally and appropriately within the jurisdiction of such court.' High's Extraordinary Legal Remedies (3d Ed.) § 200, p. 207.

'As regards the mere act of signing and approving a bill of exceptions, it is held to be of a ministerial nature, and hence subject to control by mandamus, although a legal discretion is to be observed in determining the character of the particular bill to be signed. If, therefore, the court to which the writ is directed shows satisfactory reasons for not signing the bill presented, the peremptory writ will not go, but in the absence of any return showing such reasons, the peremptory mandamus will issue. And when it is shown that the court below has absolutely refused to sign a bill, and the relator avers that the matters therein contained are material to the determination of his rights upon appeal, a proper case is presented for a mandamus to compel the signing of the bill.' High's Extraordinary Legal Remedies (3d Ed.) § 201, p. 209.

In the case of State v. Richards, 50 Fla. 284, 39 So. 152, it was held that a peremptory writ of mandamus will not be awarded unless the proceedings show a clear prima facie case, and that to make out a prima facie case the alternative writ should allege all the essential facts which show the duty and impose the legal obligation on the respondent to perform the acts demanded of him as well as the facts that entitle the relator to invoke the aid of the court in compelling the performance of such duty or obligation. See also State v. Crawford, 28 Fla. 441, 10 So. 118, 14 L. R. A. 253.

Another issue raised by the demurrer is that there is an adequate remedy at law. In this case there is no adequate remedy at law, because an appeal based on errors in rulings on admission of evidence cannot be considered by this court unless presented by bill of exceptions properly authenticated and signed by the trial court. Ropes v. Snyder Harris Bassett Co., 35 Fla. 537, 17 So. 651.

'The existing legal remedy relied upon as a bar to interference by mandamus must not only be an adequate remedy in the general sense of the term, but it must be specific and appropriate to the particular circumstances of the case.' High's Extraordinary Legal Remedies, § 17.

A judge may, without committing error, refuse to sign a bill of exceptions where the record and facts sustain his refusal without assigning any reason. In this case the judge chose to set forth reasons upon which he based his refusal, and such reasons may furnish a basis for consideration as to whether or not there is shown an abuse of discretion.

The court exercises a judicial discretion when...