Volusia County v. Eubank

• Decision Date: 12 July 1962
• Docket Number: Nos. D-319 and D-241,s. D-319 and D-241
• Parties: VOLUSIA COUNTY, a Political Subdivision of the State of Florida, and James L. Dixon, Ralph W. Richards, Harris M. Saxon, S. E. Stone and Grady B. Williamson, Individually and as and constituting the Board of County Commissioners of Volusia County, Florida, Appellants, v. J. Owen EUBANK, Willard C. Schiffermuller, Harry F. Steele, Robert T. Carson, Oscar S. Burklin, Appellees, Sidney H. Taylor, Intervening Appellant. . First District
• Court: Florida District Court of Appeals

Page 865

143 So.2d 865

VOLUSIA COUNTY, a Political Subdivision of the State of Florida, and James L. Dixon, Ralph W. Richards, Harris M. Saxon, S. E. Stone and Grady B. Williamson, Individually and as and constituting the Board of County Commissioners of Volusia County, Florida, Appellants, v. J. Owen EUBANK, Willard C. Schiffermuller, Harry F. Steele, Robert T. Carson, Oscar S. Burklin, Appellees, Sidney H. Taylor, Intervening Appellant.

Nos. D-319 and D-241.

District Court of Appeal of Florida. First District.

July 12, 1962.

Rehearing Denied Sept. 18, 1962.

Charles W. Luther, Daytona Beach, and Hall, Hartwell & Hall, Tallahassee, for appellants.

Sidney H. Taylor, DeLand, and Hull, Landis, Graham & French, Daytona Beach, for intervening appellant.

Parkinson, Sessions & Barry, Daytona Beach, for appellees.

CARROLL, DONALD K., Chief Judge.

The appellees in these two cases consolidated for appeal have moved to dismiss the appeals, principally on the ground that the orders appealed from are not appealable final judgments.

The orders in question were entered by the Circuit Court for Volusia County, granting the plaintiffs' motion for a peremptory writ of mandamus and directing the Board of County Commissioners of the said county within a certain period, to complete its examination of a certain petition and to make a final determination of the petition's sufficiency, in accordance with a number of rules and determinations enumerated in the orders. The record before us, however, fails to reveal that the peremptory writ of mandamus has ever been issued.

The Supreme Court of Florida was confronted with an analogous problem in Foley v. State ex rel. Gordon, 50 So.2d 179 (1951), wherein the Circuit Court had entered an order ordering that a peremptory writ of mandamus issue to the Board of County Commissioners of Polk County commanding them to pay certain fees. The Supreme Court held that the said order was tantamount to a final judgment from which an appeal would lie. The court further stated that such an order fell within the following recognized definition: "Final judgment' means the finish of the judicial labor, pronouncement of the ultimate conclusion of the court upon the case, and a direction to the clerk to enter judgment.' The Supreme Court later recognized this ruling in Warren v. State, 76 So.2d 485 (1954), pointing out that the issuance of the peremptory writ 'was simply a ministerial duty of the Clerk.'

On the authority of the last two...