State v. Smith
| Decision Date | 02 May 1932 |
| Citation | 105 Fla. 368,141 So. 318 |
| Parties | STATE EX REL. REMPSEN v. SMITH, Mayor, et al. |
| Court | Florida Supreme Court |
Error to Circuit Court, Osceola County; Frank A. Smith, Judge.
Proceedings by the State, on the relation of Harold, C. Rempsen, for mandamus to be directed to Clarence Smith, as Mayer of the City of St. Cloud, and others. Judgment was entered denying a peremptory writ, and relator brings error.
Reversed and remanded, with directions.
Allan Bryan, of Jacksonville, and Fred R. Baisden of Orlando, for plaintiff in error.
O. S Thacker, of Kissimmee, for defendants in error.
In this case it was alleged in an amended alternative writ of mandamus that the city of St. Cloud, Fla., had funds on hand for the purpose and sufficient to pay each and every of certain bond coupons held by the relator. The command of the writ was that respondents, as trustees of the sinking fund of the city of St. Cloud, forthwith convene and authorize the payment of and pay the relator's coupons upon the presentation and surrender thereof, and that respondents, as such trustees, do approve the disbursements; that the respondent Emma E. Raymond, as city treasurer, sign the warrant, and that the respondent Clarence Smith, as mayor, do countersign the warrant, to make such payment. The total amount of the coupons involved was shown to be $5,000.
Motion to quash the alternative writ was denied after which respondents filed a demurrer and an answer. Relator then moved for a peremptory writ, which was awarded. Before it was executed, the court granted a rehearing, and later entered a final judgment denying a peremptory writ and dismissing the proceeding, with costs. This writ of error was taken from the judgment denying a peremptory writ, the answer and demurrer of the respondents to the contrary notwithstanding.
The substance of the answer was to the effect that the respondents admitted the issuance of the bonds, and that they had not been paid, but that no judgment had been recovered on the bonds, nor had the bonds been validated by any court of competent jurisdiction; that the respondents were without knowledge of the ownership and possession of the coupons claimed by relator and demanded strict proof of such ownership and possession; that, at the time that respondents were served with the alternative writ (which was on January 2, 1932), they had on hand sufficient funds to pay the coupons alleged to belong to relator, but that the respondents did not have sufficient funds to pay all bonds that were past due and outstanding, nor sufficient funds to pay in accordance with several other writs of mandamus which had been issued and were outstanding; that no legal demand and presentation for payment had ever been made on respondents by relator, and that it was not the respondents' duty to do the several things commanded.
The answer to the alternative writ, as amended, also set up the details of the alleged other outstanding writs of mandamus against respondents as follows: (1) An alternative writ of mandamus for $910 issued in the case of State ex rel. Pat Johnson, on January 5, 1932; (2) an alternative writ of mandamus for $5,900 issued in the case of State ex rel. H. L. McDonald on January 5, 1932; (3) an alternative writ of mandamus for $5,121.67 issued in the case of State ex rel. Davis J. Robinson on January 11, 1932. The command of the last-mentioned alternative writ was alleged to have been that respondents should not disburse the sum of $5,121.67 to Harold C. Rempsen, or Pat Johnson, or H. L. McDonald, the claimants thereto, but should disburse the said sinking fund on a pro rata basis, or show cause for not doing so.
Based on these several allegations of the answer, the respondents averred that it was impossible for them to comply with the terms of all the outstanding alternative writs of mandamus with which they had been served, and accordingly prayed that no peremptory writ should issue.
In revoking the first ordered award of a peremptory writ, the circuit judge held that the answer contained denials which required the taking of testimony in support of the alternative writ's allegations. Relator declined to offer any testimony, and insisted that, on the amended writ and the return, he was entitled to a peremptory writ, notwithstanding the answer of respondents. This contention the court overruled, and, relator declining to offer proof, final judgment was entered against the relator.
We are of the opinion that the judgment so entered was erroneous.
The alternative writ alleges that the city of St. Cloud is a municipal corporation under the laws of Florida, existing under chapter 14377, Acts of 1929 of Florida; [1] that the respondents are the duly qualified and acting officials of said city; that being thereunto authorized by the laws of Florida, the city had issued $500,000 of improvement bonds dated July 1, 1925; that such bonds were issued under chapter 11209, Acts of 1925, Laws of Florida; that each of the bonds was for $1,000, bearing interest at the rate of 5 per cent. per annum; that such interest was payable semiannually each year until maturity of the bonds; that the several installments of interest accruing upon each bond were evidenced by interest coupons thereunto annexed when issued; that in and by each of the said bonds it was recited, certified, and declared by the city that all acts, conditions, and things required by law to exist, happen, and be performed precedent to, and in the issuance of said bonds existed, had happened, and had been performed in regular and due time, form, and manner, as required by law; that certain of the interest coupons pertaining to the bonds aforesaid were held by relator; that relator had purchased for value prior to maturity the bonds bearing same and without notice of any defense thereto; that relator's said coupons were then due and unpaid; that the city of St. Cloud, Fla., then had on hand applicable funds sufficient to pay each and every of said coupons; that respondent had been requested to pay the amounts due as interest upon the above-mentioned bonds as evidenced by relator's coupons, and had failed and refused to do so. Each of the coupons alleged to be held by relator was specifically described in the writ.
Such alternative writ of mandamus was...
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