State v. Rowe

• Court: Florida Supreme Court
• Writing for the Court: WHITFIELD, J.
• Citation: State v. Rowe, 118 So. 5, 96 Fla. 277 (Fla. 1928)
• Decision Date: 19 July 1928
• Parties: STATE ex rel. BANK OF AMERICA v. ROWE, Circuit Judge.

118 So. 5

96 Fla. 277

STATE ex rel. BANK OF AMERICA v. ROWE, Circuit Judge.

Florida Supreme Court

July 19, 1928

En Banc.

Original application for a writ of prohibition by the State, on the relation of the Bank of America, as trustee, against M. G Rowe, Circuit Judge. Demurrer sustained, and proceedings dismissed.

Syllabus by the Court

SYLLABUS

Demurrer in prohibition proceedings admits truth of facts that are duly alleged or suggested in petition. In prohibition proceedings, a demurrer to the petition admits the truth of the facts that are duly alleged or suggested in the petition.

Judge may determine legal sufficiency of affidavits to show disqualifying prejudice, but cannot adjudicate truth of allegations (Acts 1923, c. 9276). A judge may determine the legal sufficiency of affidavits to state facts showing his disqualifying prejudice under the statute; but the judge cannot adjudicate the truth of such allegations.

Prohibition may be appropriate remedy to prevent judicial action, when judge is disqualified. Prohibition may be an appropriate remedy to prevent judicial action, when the judge is disqualified, as well as when the judge is without jurisdiction in the cause.

Demurrer to petition for prohibition, after denial of petition showing disqualification of judge, will be sustained, in case supporting affidavits do not conform to statute (Acts 1923 c. 9276; Rev. Gen. St. 1920, § 3586; Comp. Gen. Laws 1927, § 5451). Where a rule in prohibition is issued because a judge has denied a petition showing his disqualification under the statute on the ground of prejudice, and the supporting affidavits as to the facts showing prejudice, presented to the judge and included in the petition for prohibition, do not conform to the intendments of the statute, a demurrer to the petition for prohibition will be sustained, and the proceedings dismissed.

COUNSEL

Milam, McIlvaine & Milam, of Jacksonville, for relator.

M. G Rowe, of Daytona, pro se.

OPINION

WHITFIELD J.

A petition for a writ of prohibition was presented to this court, alleging in effect that the petitioner, the Bank of America, a corporation, as trustee, is complainant in a chancery cause brought for the foreclosure of a mortgage, wherein the Clarendon Hotel Company, a corporation, Elmer L. Kincaid, and W. P. Bloodworth, as trustee, are defendants; that M. G. Rowe is the judge of the court; that on June 8, 1928, the relator made and filed with the respondent, M. G. Rowe, judge, certain affidavits and certificate pursuant to the provisions of chapter 9276, Laws of Florida 1923. The essential substance of the affidavits will be here stated, viz.:

'Before me, the undersigned authority, personally appeared E. T. McIlvaine, who, being first duly sworn, says: That he is solicitor for the Bank of America, a corporation, as trustee, the party complainant in the above-styled cause. Affiant further states that the deponent and the complainant, the Bank of America, a corporation, as trustee, fear that the complainant will not receive a fair trial in the circuit court of Volusia county, Florida, where said suit is pending, on account of the prejudice of Hon. M. G. Rowe, judge of said court, against the said complainant, and in favor of the defendants in said cause. Affiant further states, as facts and reasons for the belief that the aforesaid bias and prejudice of the said judge exists,' the following, which is the essential substance of the affidavit:

That a final decree of foreclosure was rendered in said cause and the property was advertised for sale for Monday, December 5, 1927, and that on Saturday, December 3, 1927, the defendants Clarendon Hotel Company and Elmer L. Kincaid, conspiring and conniving with certain creditors to avoid said sale, accomplished the filing of an involuntary petition of bankruptcy against the Clarendon Hotel Company in the United States District Court, wherein the judge of said court issued a stay order staying the sale as advertised; that in due course the complainant accomplished the dissolution of said stay order and again advertised the property for sale on February 6, 1928, 'and following certain statements made by the attorney for the defendant, Elmer L. Kincaid, one of the defendants, hereinafter set forth, the attorneys for complainant, addressed and mailed to Judge M. G. Rowe, judge of the aforesaid court, a letter, viz.:

"December 31, 1927.

"Judge M. G. Rowe, Daytona Beach, Florida--My dear Judge: This firm represents the Complainant in a mortgage foreclosure suit on the Clarendon Hotel. The property was to be sold on December rule day, but on the Saturday before the sale on Monday a petition in bankruptcy against the Hotel Company was filed, and a 60-day stay order was obtained from the federal court without notice. Judge Jones dissolved the stay order a few days ago.

"I do not know that any other dilatory proceedings will be attempted by the defendant, but, in case anything is attempted, I would respectfully ask that you please require the parties to give us ample notice. I know this is in accord with your general policy.'

'That pursuant to the final decree of April 6, 1927, and the dissolution of the stay order by the judge of the federal court, the property involved in said suit was advertised for sale and sold by special master on February 6, 1928, to one W. C. Anderson, for the sum of two hundred thousand dollars ($200,000.00). Whereupon, on the same day, to wit, February 6, 1928, said sale was confirmed by the judge of said court, and the defendants were ordered to deliver up possession of said premises. And on the same day the master's deed was delivered by said master to said W. C. Anderson, conveying to him the premises involved herein. That at the time of confirming said sale Hon. M. G. Rowe, judge of said court, denied an objection of the defendants to the confirmation of said sale, and then stated in open court that said judge would refuse to enter a deficiency decree in said cause against the said defendants, and in explanation of such refusal said judge then stated in effect that he was opposed to rich, nonresident corporations taking any advantage of local residents.

'That as a result of 'stated' ex parte orders, injunctions, and rehearings granted, and of the failure and refusal of said court to rule upon such matters, other than to grant stay orders as aforesaid, the defendants Clarendon Hotel Company and Elmer L. Kincaid, clients of Paul C. Harvey, have been maintained in the possession of the property involved in said suit, and are still in possession thereof, and have ever since February 6, 1928, and still do, receive rents, issues, and profits of said property, which property consists of a large hotel at Daytona Beach, Florida, and divers and sundry apartment buildings upon said premises, rented in connection therewith.

'That the aforesaid Paul C. Harvey, counsel for defendants, was closely associated in the practice of law with Hon. M. G. Rowe, the present judge of said court, before M. G. Rowe became judge of said court, and that said Paul C. Harvey was influential in obtaining the appointment of the said judge, and is at the present time actively engaged in soliciting support for said judge in his race for re-election. That some time during the month of November, 1927, the defendant Elmer L. Kincaid was discussing with affiant the question of whether or not he should employ counsel to assist him in maintaining possession of said Clarendon Hotel, and said Kincaid then and there stated to affiant, in effect, that he had been informed and believed that, by employing the said Paul C. Harvey as his counsel, he could obtain special favors in this court. That Paul C. Harvey, on or about December 10, 1927, at a hearing before the United States District Judge, at Jacksonville, Florida, made a statement to the effect, in substance, that, if he could not obtain sufficient stay orders to keep the complainant out of possession of said hotel in said United States court, then he could obtain such orders in the circuit court of Volusia county, Florida.

'Wherefore, by reason of the facts aforesaid, affiant fears that the complainant in this cause will not receive a fair trial in the said circuit court of Volusia county, Florida, and has not received a fair trial at the hands of the said judge, on account of the prejudice of the judge of said court against the said complainant and in favor of the defendants. And affiant believes that the several orders and decrees aforesaid, staying the proceedings herein, and superseding both the right of the complainant to foreclose its mortgage and its rights to have possession of the mortgaged premises, as well as the neglect and refusal of the said judge to make any order whereby the aforesaid matters could be reviewed by the Supreme Court of Florida, or to cause the defendants to furnish any bond against the damage accruing, or to segregate and preserve the income and profit from said property, are caused by the bias of the said judge in favor of the defendants to this suit, and of their counsel, and said matters and things have happened and have been done with the sole object and purpose in view to maintain the Clarendon Hotel Company, defendant, in the continued possession of the mortgaged premises herein, in order that it might reap the rents, issues, and profits thereof, without the necessity of paying the same upon the mortgaged indebtedness herein.

'Wherefore affiant believes that said presiding judge of said court, Hon. M. G. Rowe, is disqualified in this cause by virtue of the terms and provisions of chapter 9276, Laws of Florida 1923, and moves the court for an order of disqualification.'

The following is the 'certificate of c...