Weeks v. State Ex Rel. Moore

• Decision Date: 15 June 1938
• Parties: WEEKS, Circuit Court Clerk v. STATE ex rel. MOORE.
• Court: Florida Supreme Court

182 So. 280

132 Fla. 825

WEEKS, Circuit Court Clerk v. STATE ex rel. MOORE.

Florida Supreme Court

June 15, 1938

Error to Circuit Court, Glades County; George W. Whitehurst, Judge.

Mandamus proceeding by the State of Florida, on the relation of J. P Moore, individually and as tax collector of Glades county Fla., against D. S. Weeks, as Clerk of the Circuit Court of Glades county, Fla., wherein the issue was whether the tax collector was entitled to commissions included in tax sale certificates when the certificates were sold under provisions of Acts 1937, c. 18296. To review a judgment denying peremptory writ of mandamus but ordering the respondent to pay over to the relator all sums received from the sale of all state-owned certificates, above actual costs of sale, and up to the five per cent. commission therein belonging to the relator, in all cases where sale was consummated by delivery of certificates, the respondent brings error.

Reversed and remanded for further proceedings.

COUNSEL

J. M. Couse, of Moore Haven, for plaintiff in error.

Strayhorn & Strayhorn, of Fort Myers, for defendant in error.

OPINION

BUFORD, Justice.

Writ of error brings for review judgment denying peremptory writ of mandamus but ordering as follows:

'It is further ordered, however, that the respondent immediately pay over to the relator all sums received from the sale of all state owned certificates, above the actual costs of sale, and up to the 5% commission therein belonging to the relator, in all cases where sale has been consummated by delivery of the said certificates.'

This judgment did not conform to the requirements set forth in the alternative writ and was therefore, not a proper judgment in mandamus proceedings.

In mandamus the peremptory writ must follow the alternative writ and the judgment should be to award peremptory writ or to quash the alternative writ with or without leave to amend. See State v. Tucker, 106 Fla. 905, 143 So. 754; State v. Thursby, 104 Fla. 103, 139 So. 372, 140 So 775; Tampa Water Works Co. v. State, 77 Fla. 705, 82 So. 230.

The law as stated by this Court in the opinion filed March 30th in the case of State ex rel. Hughes v. Caruthers, reported in 180 So. page 27, is applicable by analogy to the instant case. In both cases the controlling question is whether or not the tax collector is entitled to commissions included in tax sale certificates when the certificates are...